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Ram Autar and ors. Vs. Kaushal Kishore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 2772 of 1960
Judge
Reported inAIR1965All44
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 21, Rule 32
AppellantRam Autar and ors.
RespondentKaushal Kishore
Appellant AdvocateD.D. Seth, Adv.
Respondent AdvocateJ.M. Pant, Adv.
DispositionAppeal dismissed
Excerpt:
.....under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 385 of 1956. this suit was dismissed on june 12, 1959, after which it appears that the judgment debtor closed the door at a 1, a 2. an appeal was filed against the decree dismissing the suit, and i am told that upon failure of that appeal a second appeal filed by the judgment-debtor is pending in this court. the jurisdiction conferred under order 21 rule 32 of the code can be exercised only where a party against whom an injunction has been passed has wilfully failed to obey it i am not satisfied that the finding that there has been no wilful disobedience is perverse or..........pathak, j.1. this is a decree-holder's appeal arising out of execution proceedings. ram autar and kaushal kishore are brothers and live in premises which are contiguous to each other.2. ram autar instituted suit no. 181 of 1940 alleging that kaushal kishore had constructed a new door ef in the upper storey of the house which opened upon the plaintiffs balcony, and that as he had no right to use the balcony he should be required to close the door. the suit was decreed on september 11, 1940 and kaushal kishore was directed not to interfere with ram autar's balcony on the first floor and not to exercise any right of way over this balcony through the door ef. in appeal from this decree, the lower appellate court decreed further that ram autar could do whatever he pleased in order to prevent.....
Judgment:

R.S. Pathak, J.

1. This is a decree-holder's appeal arising out of execution proceedings. Ram Autar and Kaushal Kishore are brothers and live in premises which are contiguous to each other.

2. Ram Autar instituted suit No. 181 of 1940 alleging that Kaushal Kishore had constructed a new door EF in the upper storey of the house which opened upon the plaintiffs balcony, and that as he had no right to use the balcony he should be required to close the door. The suit was decreed on September 11, 1940 and Kaushal Kishore was directed not to interfere with Ram Autar's balcony on the first floor and not to exercise any right of way over this balcony through the door EF. In appeal from this decree, the lower appellate Court decreed further that Ram Autar could do whatever he pleased in order to prevent the use of the door EF by Kaushal Kishore for passage to the Chhajja. A second appeal by Kaushal Kishore to this Court, and cross objections filed therein by Ram Autar, resulted in a decree on November 20, 1943 whereby the declaration granted by the lower appellate court was set aside and the cross-objection was allowed in so much that Kaushal Kishore was directed not to interfere with plaintiff's balcony on the first floor and not to open the door EF and to exercise any right of way over the balcony through the door EF.

3. A second suit (No. 254 ot 1942) was filed by Ram Autar against Kaushal Kishore and others. In this suit, it was alleged that there was a passage employed by Ram Autar for going to his roof and Chhajja through A 1, A 2 to the roof of the balcony, that the defendants had fixed a door at A 1, A 2 obstructing the plaintiff's passage, and it was pray ed that the defendants be directed to remove the doors and be injuncted against interfering with the plaintiff's right of way. This suit was dismissed on October 22, 1943 and an appeal filed by the plaintiff was also dismissed.

4. On November 21, 1955 an application was made for enforcing the decree in suit No. 181 of 1940, as modified by this Court on November 30, 1943 in second appeal, alleging that Kaushal Kishore had commenced interfering with the plaintiff's balcony through the door at A 1, A 2, that thereby he had disobeyed the decree passed by the court and it was prayed that proceedings under Order XXI Rule 32 of the C. P. C. should be taken against him Another application was moved by Ram Autar on November 25, 1955 stating that Kaushal Kishore had started interfering with his rights for the first time in 19.54. It appears that in neither application did the decree-holder indicate in what manner the judgment debtor had disobeyed the decree

5. On March 5, 1956, the judgment-debtor applied for an order to the decree-holder requiring him to furnish details of the manner in which, and the time at which, the said inference was alleged against him. On March 22, 1956, the judgment-debtor filed objections under Section 47 of the Code, inter alia on the grounds that the execution application was vague, that the door EF had been closed by him long ago and that he had fully complied with the decree of the court and that the decree holder was not entitled to the reliefs claimed in his application. An order was passed that these objections should be treated as a suit and the suit was numbered as suit No. 385 of 1956. This suit was dismissed on June 12, 1959, after which it appears that the judgment debtor closed the door at A 1, A 2. An appeal was filed against the decree dismissing the suit, and I am told that upon failure of that appeal a second appeal filed by the judgment-debtor is pending in this Court.

6. During the proceedings before the executing court the decree holder filed an affidavit on August 3, 1956 stating that the judgment-debtor had closed the door EF after the decree by this Court on November 30, 1943, that in February 1954, however, the judgment-debtor converted an open tin shed to the west of the balcony into a room and had started passing through a door of that room into the balcony. In reply to this affidavit on August 6, 1956, the judgment debtor asserted that the door A 1. A 2 had been in existence since 1940 as was alleged by the decree holder in his suit No. 254 of 1942 and that it was used ever since for passing over the balcony.

The executing court came to the finding that upon the facts it could not be said that judgment debtor had intentionally disobeyed the decree and, therefore, directed that no further action was called for in the matter. An appeal was filed by Ram Autar, which was dismissed by the learned Additional Civil Judge, Bareilly.

7. The lower appellate court considered the various circumstances of the case and found that the judgment-debtor had not been guilty of wilful disobedience of the decree and that it was not a fit case where proceedings under Order XXI Rule 32 should be taken.

8. Learned counsel for the appellant has urged that the finding of the court below thai there was no wilful disobedience of the decree is erroneous, that it was apparent that the judgment-debtor had been directed not to interfere with the balcony and that upon the facts it was apparent that by passing through the door A 1, A 2 the judgment-debtor had disobeyed the decree

9. The question raised before me is whether the finding that there has been no wilful disobedience of the decree is a correct finding. This is a finding of fact, arrived at by both the courts below. It may be possible to contend that the judgment-debtor committed a breach of the terms of the decree, but whether he wilfully disobeyed the directions contained in the decree is another matter. The jurisdiction conferred under Order 21 Rule 32 of the Code can be exercised only where a party against whom an injunction has been passed has wilfully failed to obey it I am not satisfied that the finding that there has been no wilful disobedience is perverse or arbitrary.

10. Learned counsel further contended that the trial court while deciding suit No. 385 of 1956 has held that the judgment-debtor disobeyed the decree. He was unable however, to point out to any finding in that judgment that the judgment-debtor had wilfully disobeyed the decree. Reliance was placed by the appellant on Vithal Yeshwant v. Shikandarkhan : [1963]2SCR285 . In that case the Supreme Court laid down the law relating to the operation of the doctrine of res judicata. That decision has, however, no application in as much the appellant has not been able to establish his contention that the judgment in suit No. 385 of 1956 contains a finding that the judgment-debtor was guilty of wilful disobedience of the decree.

11. It was finally contended that even though the judgment-debtor may have felt a doubt as to the correct interpretation of the decree passed by this Court on November 30, 1943 he should have fully complied with it. If there is a doubt in the mind of a party as to the true scope of an injunction granted against him which doubt arises because of the vague terms in which the injunction is couched, it cannot be said that he has wilfully disobeyed that injunction Reliance was placed on behalf of the appellant on Eastern Trust Co. v. Makenzie Mann and Co. Ltd. AIR 1915 PC 106(2) and All India Sugar Mills Ltd v. Sardar Sunder Singh : AIR1937Cal601 . These two decisions in my view are clearly distinguishable in the first the Judicial Committee laid down that if there was any difficulty in ascertaining the law the Courts were open to the Crown to sue. and it was the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it. The latter was a case where proceedings were taken in respect of an act said to constitute contempt of court, and it was laid down that where a person was restrained by a judicial order from proceeding with a certain action, the person so ordered was not justified in disobeying the order merely because he was advised or thought that the order was wrong in law. These decisions do not help the appellant

12. No other point was raised before me.

13. All the contentions of the appellant havingfailed, this appeal is dismissed with costs.


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