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Suba Singh and ors. Vs. Bagicha Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1477 of 1979
Judge
Reported inAIR1980P& H62
ActsCode of Civil Procedure (CPC), 1908 - Sections 51 and 58 - Order 21, Rule 32(1) and 37 - Order 39, Rule 2(A); Indian Limitation Act, 1963 - Schedule- Article 135; Code of Civil Procedure (CPC) (Amendment) Act, 1996
AppellantSuba Singh and ors.
RespondentBagicha Singh
Excerpt:
.....the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or (ii) on the decree against him being otherwise fully satisfied, or (iii) on the request of the person on whose application he has been so detained, or (iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance; the committee further feel that a man should not be detained in civil prison where the amount of the decree does not exceed five hundred rupees so that the poor debtors may not be harassed by their detention in civil prison. ' the said section 58 also provides that the judgment-debtor shall be released from such detention as soon as the decree passed against him is fully satisfied or on the omission of the person on..........same may be enforced under o. 21 rule 32 of the code by the detention of the judgment-debtors in civil prison and by attachment of their property. this execution application was opposed by the judgment-debtors and in reply thereto it was stated that the possession of the suit land was given by bagicha singh, decree-holder, himself and since they took possession. of the land with the consent of the decree-holder, there is no question of enforcing the decree as preyed by him. on the basis of these pleadings, the executing court framed the following issues:--1. whether the decree-holder gave the possession of the land to the judgment debtors, as alleged? 2. reliefboth the parties were allowed to lead evidence in support of their stand and the executing court after going through the.....
Judgment:
ORDER

1. The judgment-debtors have filed this revision petition, against the order of the executing Court, dated 26tb May, 1979, by. virtue of which, under Order 21 Rule 32(1) of the Code of Civil Procedure (hereinafter referred to as the 'Code'), the attachment of the property of the judgment-debtors as well as their detention, has been ordered.

2. Bagicha Singh, respondent-decree-holder obtained a decree for permanent injunction against the judgment-debtors on l9th January, 1974, whereby the judgment-debtors were restrained from interfering with the possession of the decree-holder over the land, measuring 35 Kanala 17 Marlas, situated in village Jhanda Bagga Nawan, Tehsil Zira. On 6th December, 1977, the decree-holder filed an application under Order 21 Rule 32 read with Section 151 of the Code, for the enforcement of the said decree, dated l9th January, 1974. It was alleged therein that despite the decree, the judgment-debtors took forcible possession of the land in July, 1974. It was also stated that a similar application was presented earlier for taking action against the judgment-debtors, but the same was consigned to the record room on l5th Mar., 1976, for awaiting decision of a criminal case between the parties. The said criminal case was decided by the Judicial Magistrate 1st Class Zira. on 22nd November, 1977. Since the judgment-debtors have wilfully disobeyed the decree, the same may be enforced under O. 21 Rule 32 of the Code by the detention of the judgment-debtors in civil prison and by attachment of their property. This execution application was opposed by the judgment-debtors and in reply thereto it was stated that the possession of the suit land was given by Bagicha Singh, decree-holder, himself and since they took possession. of the land with the consent of the decree-holder, there is no question of enforcing the decree as preyed by him. On the basis of these pleadings, the executing Court framed the following issues:--

1. Whether the decree-holder gave the possession of the land to the judgment debtors, as alleged?

2. Relief

Both the parties were allowed to lead evidence in support of their stand and the executing Court after going through the record, came to the conclusion that the judgment-debtors took the possession forcibly from the decree-holder. The allegation of the judgment-debtors that they had agreed to forego their amount from Bagicha Singh and in turn the latter had handed over the possession of the suit land to them voluntarily, was found to be false. While granting the relief, it was objected on behalf of the judgment-debtors that the decree cannot be enforced by putting them in civil prison. In support of this argument, reliance was placed upon the provisions of Sections 51 and 58 of the Code. It was urged that Section 58 does not relate to the execution of the injunction decree, and therefore, no order for detention could be passed against the judgment-debtors. The executing Court did not accept this contention of the judgment-debtors and passed the impugned order under Order 21 Rule 32 (1) of the Code.

3. The learned counsel for the judgment-debtors has vehemently argued that the finding of the executing Court that they had taken the possession forcibly, is wrong and illegal, particularly in view of the acquittal order passed by the Criminal Court in their favour on 22nd November, 1974. It was also contended that the decree-holder is estopped to execute the decree because he himself allowed his earlier application to be consigned to the record room and to wait for the decision of the Criminal Court. According to the learned counsel, the proper remedy for the decree-holder to get the possession back is to file e regular civil suit. It was also urged that the application for execution of the decree is barred by limitation because of Article 135 of the Indian Limitation Act, 1963. I have considered all these contentions of the learned counsel, but I do not find any force in either of them. These pleas were never taken in the reply filed by them in the executing Court; nor the executing Court was ever called upon to decide this matter on the said pleas The only question before the executing Court was, whether the possession was delivered by the decree-holder voluntarily as alleged by the judgment-debtors in their reply or it was taken forcibly by them. This being a finding of fact arrived at after considering the evidence on record, this Court will not interfere with the same in its revisional jurisdiction. As regards the question of limitation based on Art. 135. I do not find any force therein. That article is applicable only for the enforcement of a decree granting a mandatory injunction whereas in the present case, the decree is for prohibitory injunction.

4. The learned counsel for the judgment-debtors next contended that in any case, no order of detention. under O. 21 R. 32(1) of the Code could be passed by the executing Court. His argument is that under Section 51(c) of the Code, the Court may order execution of the decree by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is. permissible under that Section, Section 58 provides that:

'(1) Every person detained in the civil prison in execution of a decree shall be so detained:

(a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for a period not exceeding three months, and

(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding the one thousand rupees, for a period not exceeding six weeks:

Provided that he shall be released from such detention before the expiration of the said period of detention--

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance;

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

(1-A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made. where the total amount of the decree does not exceed five hundred rupees

(2-A) A judgment-debtor released firm detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

According to the learned counsel, wherever the detention is provided under the Code, period has been provided, but there is no provision under which any period for detention has been provided if the detention is made under Order 21 Rule 32(1) and as a consequence thereof, according to him, no detention can be ordered under Order 21 Rule 31(1). I have examined this contention of the learned counsel but I do not find any force therein. Section 58, as reproduced above, was amended by Act No. 104. of 1996. For the Objects and Reasons for the said amendment, it has been stated as under:--

'Clause 22 (Original Clause 23r--Section 58 of the Code, as it now stands, does not give the Court any discretion as to the term of which a person may be detained in civil prison in execution of e decree for the payment of money. The Committee therefore, feel that such discretion should be conferred on the Court.

The Section further provides for the detention in civil prison for a period of six month, if the amount of the decree exceeds fifty rupees or for six weeks in any other case. The Committee feel that the monetary limit should be raised to one thousand rupees. Further, the maximum period of imprisonment should be reduced to three months where the amount of the decree exceeds one thousand rupees, and six weeks in any other case.

The Committee further feel that a man should not be detained in civil prison where the amount of the decree does not exceed five hundred rupees so that the poor debtors may not be harassed by their detention in civil prison. The clause has been amended accordingly.'

The said Section 58 also provides that the judgment-debtor shall be released from such detention as soon as the decree passed against him is fully satisfied or on the omission of the person on whose application he has been so detained to pay subsistence allowance. Thus the judgment-debtors will be immediately released from the detention as soon as they satisfy the decree passed against them. They cannot be allowed to take the position that they will not undo the wrong which they have done. Thus, on this ground alone, it cannot be held that no order of detention could be passed under Order 21 Rule 32(1) of the Code, which clearly provides that where a 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 same may be enforced by his detention in the civil prison or by the attachment of his property or by both. Wherever the detention is provided under the Code by way of penalty as a consequence of disobedience of any order, maximum period for detention has been provided such as under Order 39 Rule 2(A). Similarly, where detention is sought as provided under Order 21 Rule 37 of the Code of the execution of money decree, maximum period has been provided under Section 58. The reason is obvious. Even if a person is detained in civil prison, he may not be able to satisfy the money decree against him and for that reason he cannot be detained in civil prison for an indefinite period. Therefore, the legislature in its wisdom has provided the maximum period of detention for that purpose as well. The purpose of detention under Order 21 Rule 32(1) is for the enforcement of the decree for an injunction etc.; and therefore, the question of providing any maximum period, in the nature of things does not arise. The person detained will be released as soon as he satisfies the decree against him, that is, the wrong done by him is undone, which is within his powers to do. He cannot he allowed to plead his own fault in his defence.

5. Thus I do not find any force in this petition which is consequently dismissed with costs.

6. Petition dismissed.


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