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Bendakayala Abdul Rajack and ors. Vs. Vastad Abdul Latheef - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 241 of 1960
Judge
Reported inAIR1961AP482
ActsCode of Civil Procedure (CPC) , 1908 - Sections 36 - Order 21, Rule 32(1) - Order 39, Rule 1
AppellantBendakayala Abdul Rajack and ors.
RespondentVastad Abdul Latheef
Appellant AdvocateR.V. Subba Rao, Adv.
Respondent AdvocateK. Siva Prasada Rao, Adv.
DispositionRevision allowed
Excerpt:
.....anything not mentioned is excluded. - ..for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced .in the case of a decree .for an injunction by his detention in the civil prison, or by the attachment of his property, or by both......66 of 1958 in the court of the district munsif, nandyal praying for a declaration that he was a peish imam and muttawalli of a certain mosque and that he was entitled to exercise the rights of such office and for the issue of a permanent injunction restraining the defendants from disturbing him in exercising those rights. the plaintiff filed i. a. no. 320 of 1958 in the district mun-sifs court, nandyal asking for a temporary injunction against the defendants. the learned district munsif passed an order of temporary injunction on 22-4-1958. the eight defendants took the matter in appeal in c. m. a. no. 27 of 1959 in the court of the additional subordinate judge, kurnool in that court, both parties filed a joint memo and accordingly, the learned subordinate judge passed an order as.....
Judgment:
ORDER

1. This is a Petition to revise the order of the District Munsif, Nandyal, in E. p. No. 302 of 1959 in C. M. A. No. 27 of 1959 (Additional Sub-Court. Kurnool).

2. The relevant facts are as follows:-Abdul Lateef, the respondent filed O. S no. 66 of 1958 in the Court of the District Munsif, Nandyal Praying for a declaration that he was a Peish Imam and Muttawalli of a certain mosque and that he was entitled to exercise the rights of such office and for the issue of a permanent injunction restraining the defendants from disturbing him in exercising those rights. The plaintiff filed I. A. No. 320 of 1958 in the District Mun-sifs Court, Nandyal asking for a temporary injunction against the defendants. The learned District Munsif passed an order of temporary injunction on 22-4-1958. The eight defendants took the matter in appeal in C. M. A. No. 27 of 1959 in the Court of the Additional Subordinate Judge, Kurnool in that Court, both parties filed a joint memo and accordingly, the learned Subordinate Judge passed an order as follows:-

'.....this Court in pursuance of the said joint memo in allowing the appeal doth order and decree as follows r-

1. that the respondent (plaintiff) shall 'undertake to perform the peish imam and muttavalli services in the suit mosque properly and regularly and shall have no objection to the appellants (defendants) offering prayers in the mosque without disturbing the peish imam and muttavalli services of the respondent (plaintiff).

2. That the injunction order be and the same-is hereby varied to the above extent.' Later, the eight defendants filed E. P. No 302 at 1959 in C. M. A. No. 27 of 1959 in the Court of the District Munsif, Nandyal under Order 21 Rule 32' Clause (1) C. P. C. alleging that the plaintiff had' not been performing his duties as Peish imam and muttavalli on a number of occasions as mentioned in the appellate decree and had thereby acted in contravention of the decretal order of the appellate Court. They (defendants) therefore, prayed for arrest of the judgment-debtor (Latif) and attachment of his immoveable properties. The learned District Munsif dismissed the petition holding as follows :-

'....... It is rather difficult to understand how an order of injunction passed under Order 39 Rule 1 C. P. C. could be treated as a decree for injunction. If such an order is not a decree for injunction, Order 21 Rule 32 C. P. C. would obviously not apply.' Seven of the eight defendants i.e., all defendants except Defendant 4 have filed this petition to revise that order.

3. The point for consideration is whether Order 21, Rule 32 (1) C. P. C applies to mandatory injunctions?

4. At the outset, I have to state that no direct decision of this Court or any other High Court has been placed before me involving the same point.

Order 21, Rule 32 (1) C. P. C. reads: 'Where the party against whom a decree....... for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced .............. in the case of a decree ......... for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.' Order 21, Rule 32(5) C. P. C. runs ;

'Where a decree ........ for an injunction has not been obeyed, the Court may ...... direct that the act required to be done may be done so far as practicable by the decree-holder ......... and upon the act being done the expenses incurred ........... may be recovered as if they were included in the decree.'

5. The learned District Munsif relied on the decision in Chinnabba Chetty v. Chengalroya Chetty, : AIR1950Mad237 wherein it was held that Order 21. Rule 32 (5) C. P. C. was intended to cover only mandatory injunctions and did not apply to prohibitory injunctions, preventing interference by defendants with plaintiffs rights. In the present case, E. P. No. 302 of 1959 was put in by the eight defendants regarding action under Order 21, Rule 32 (1) C. P. C. and not under Order 21, Rule 32(5) C. P. C.

6. In Bellary Press Co. Ltd. v. Venkata Rao, 8 Ind Cas 7 (Mad), it was observed as follows: (at page 8 column 2).

'................ Indeed the ad interim injunction would 'probably be enforceable' under Section 36 read with Rule 32 of Order XXI C. P. C.'

7. In Janak Nandini v. Kedar Narain Singh, AIR 1941 All 140 at p. 142 a Bench of the Allahabad High Court observed thus:

'I think, therefore, that there is considerable force in the argument Placed before us that the enforcement of injunction issued under Order 39, Rule 1 should be under the provisions of Section 36 and Order 21, Rule 32, Civil Procedure Code. If that is so, the provisions of Sub-rule (3) of Rule 2 of Order 39 would not apply ............'

In the instant case, the order from its form and nature is obviously a decretal order. The underlined (here into') portion of it if looked at as an injunction,, is of the nature of a mandatory injunction. Under Section 36 C. P. C. the provisions of the Civil Procedure Code relating to the execution of' decrees should be deemed to apply to the execution of orders. So, Order 21, Rule 32(1) C. P, C. would apply to the execution of a decretal order for mandatory injunction,

8. Under the above decretal order, the defendants get directly a right to offer prayers in the mosque without disturbing the peish imam and mutavalli services of the plaintiff. In addition it is mentioned in the same order that the Plaintiff 'shall undertake' to perform the peish imam and muttavalli services in the suit mosque properly and regularly'. The words 'shall undertake' obviously mean 'undertakes' and has been understood and treated as such by both sides in this Court.

In the suit, the relief claimed by the plaintiff was on the basis that he had a 'right' to perform the peish imam and muttavalli services and that he wanted relief by way of permanent injunction from being disturbed by the defendants in the performance of those services. But, in the order based on the joint memo in C. M. A. No. 33 of 1958, it is put as if the plaintiff made an undertaking to perform those services properly and regularly.

In effect, as regards the performance by the plaintiff of services as Peish Imam, a right is claimed in the suit and a liability is imposed in the order in C. M. A. No. 33 of 1958. In any case, this is a decretal order passed on a consent memo and it contains an undertaking by the plaintiff himself. As there was an allegation that the plaintiff had not performed what he undertook to do in that decretal order, the lower court had a right to see that he (plaintiff) fulfilled the undertaking.

The court could not refuse to go into the allegations in E. P. No. 302 of 1959 and dismiss it. The learned District Munsif had to look into the matter and satisfy himself whether the plaintiff had done what he had undertaken to do in the decretal order. In this connection, the learned District Munsif will also consider the question as to whether the undertaking filed by the plaintiff is only an undertaking to he fulfilled in order to satisfy the Court and whether any right accrues to the defendants by virtue of the above undertaking.

9. The revision petition is, therefore, allowed, the order of the lower court is set aside and the mater is remanded to the lower court i.e., the District Munsifs Court, Nandyal, The learned District Munsif is directed to dispose of the matter afresh in the light of the above observations. In the circumstances of the case, I make no order as to costs.


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