RAYI RANGAYYA NAIDU Vs. RAYI SUBBAYYA NAIDU

JUDGEMENT

(1.) THIS is an appeal from the decree of the District Judge of Chittoor dated 27 January, 1932 reversing on appeal the decree of the Principal District Munsiff of Chittoor dated 24th February, 1931, passed in an execution petition presented under Order 21, Rule 32, Civil Procedure Code. The petition for execution which purported to be made under Order 21, Rule 32, did not allege that there had been any disobedience of the injunction or indeed any act which could be construed as disobedience or failure to obey the decree passed by the Court. There was further no allegation that the party against whom the petition was directed had an opportunity of obeying the decree. On the other hand, it was admitted in the lower Courts by the petitioner that the time for enforcing the injunction had not yet arrived. It is clear from these facts that the application did not lie under Order 21, Rule 32, as observed by the learned District Munsiff. The prayer in the petition was really not to punish the defendant for any disobedience but merely for the issue of a notice or order embodying the injunction already embodied in the decree though the decree itself was one passed in the presence of the parties against whom such notice or order was asked for afresh. Order 21, Rule 32, does not provide for the issue of such a notice or order and it is not as if there is any clear provision of law which entitles the successful plaintiff in a suit for injunction to make an application of this kind for the issue of a special order or notice embodying the terms of the decree. It may be that the Court has an inherent power to issue such a notice or order where the circumstances require it. But it does not appear that the party himself has a right to ask the Court to issue such a notice or make such an order and have it served through Court on the defendant. The defendants put in a counter stating that they had always been ready and willing to respect the decree passed by the Court and there was no necessity for the petition which had been put in merely to harass them and saddle them with costs. The learned District Munsiff was therefore of opinion that the petition was clearly quite unnecessary and unjustifiable and in all probability was made only to harass the counter petitioners. The learned District Judge seems to have thought that because in Durga Das Nandi V/s. Dewraj Agarwala (1905) I.L.R. 32 Cal. 306 it was held that disobedience to an injunction could be punished even though no separate notice of the injunction had been served on the defendant therefore it must be presumed that an order of notice of this kind can be issued. I am unable to accept this interpretation which was placed by the learned District Judge on the decision in Durga Das Nandi V/s. Dewraj Agarwala (1905) I.L.R. 32 Cal. 306. In any case that decision does not decide that the successful plaintiff in a suit for injunction has the right to ask the Court to issue a notice or order and have it served on the defendants even in a case where the decree itself was passed in the presence of the defendants. The learned District Judge himself was unable to find any real necessity for the issue of the notice or order in the present case. He appears to have thought that the successful plaintiff in every injunction suit is entitled to ask the Court to issue such a notice and that because the plaintiff in the present suit had chosen to make an application for the issue of notice or order the Court could not refuse his request or prayer. He appears to have regarded the petition as a step taken in execution. Execution of what order it is not clearly stated. The only method by which an injunction could be enforced is what is found in Order 21, Rule 32, that is to say, to punish the disobedient defendant by detaining him in the civil prison or by the attachment of his property or by both. The decree of the District Judge is in my opinion based on an incorrect understanding of the rights of the successful plaintiff in a suit for injunction. There were no circumstances in the case to justify the issue of a notice or order of the kind asked for by the plaintiff-decree-holder. The decree appealed from must therefore be set aside and the order of the Principal District Munsiff restored with costs in this Court. (Leave to appeal refused).