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Repayi Jose Vs. Chacko Lonappan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 828 of 1958
Judge
Reported inAIR1959Ker395
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 32
AppellantRepayi Jose
RespondentChacko Lonappan and anr.
Respondent Advocate T.K. Sankara Menon,; T. Unnikrishna Menon and; P. Achuth
DispositionAppeal allowed
Excerpt:
.....or, in the case of the decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. the decree can be enforced in the manner prayed for in the execution petition only when the judgment-debtors have wilfully failed to obey the decree. as the decree-holder has no case that the judgment-debtors have entered the land or are cultivating it, the execution petition is clearly premature and the concurrent orders allowing the same have to be set aside. this question can be decided if and when the judgment-debtors wilfully fail to disobey the decree and the decree-holder applies for relief.joseph, j.1. this second appeal arises from an order in execution of a decree passed on a compromise. the plaintiff's suit was for a permanent injunction restraining the defendants from entering into possession or a paddy field. the parties settled their differences during the pendency of the suit and a compromise petition was filed on the basis of which the decree was passed. the decree provided that the defendants had no manner of right or possession in the property, that they would be allowed to raise the punja crops of 1132 as licensees and that in consideration of the same, they were to pay 860 paras of paddy to the plaintiff on or before 10th edavam 1132 (23-5-1957).it was also provided that after taking the harvest of 1132 defendants 1 and 2 were not to enter the land. the decree.....
Judgment:

Joseph, J.

1. This second appeal arises from an order in execution of a decree passed on a compromise. The plaintiff's suit was for a permanent injunction restraining the defendants from entering into possession or a paddy field. The parties settled their differences during the pendency of the suit and a compromise petition was filed on the basis of which the decree was passed. The decree provided that the defendants had no manner of right or possession in the property, that they would be allowed to raise the punja crops of 1132 as licensees and that in consideration of the same, they were to pay 860 paras of paddy to the plaintiff on or before 10th Edavam 1132 (23-5-1957).

It was also provided that after taking the harvest of 1132 defendants 1 and 2 were not to enter the land. The decree was passed on 11-12-1950. The decree-holder applied for execution on 23-12-1957 stating that the decree was one for permanent injunction restraining the judgment-debtors from entering into possession of the land and that they were attempting to enter the land against the terms of the decree. The prayer in the execution petition was for detention of the judgment-debtors in the civil prison and for attachment of their properties as provided by Rule 32, Order XXI, Civil Procedure Code.

The 1st defendant filed objections contending that the prayers in the execution petition could not be granted, that the petition was not maintainable. in view of Act I of 1957 (Kerala) and that the decree was not maintainable. Overruling these objections the execution Court passed an order holding that the judgment-debtors were liable to be detained in the civil prison. They were allowed one month's time to comply with the decree. The judgment-debtors appealed to the Subordinate Judge, Irinjalakkuda, who confirmed the order. They nave, therefore, preferred this second appeal.

2. The questions considered by the Courts below were whether there was a decree for injunction which was capable of execution and whether the judgment-debtors were entitled to possession of the land under Sections 6 and 7 of Act 1 of 1957 and Ordinance I of 1957 (Kerala). It is unnecessary to consider these questions now, as in bur opinion the second appeal must be allowed on a short ground. As stated earlier the prayer of the decree holderwas that the judgment-debtors should be detained in the civil prison and their properties placed under attachment under Rule 32 of Order XXI as they were attempting to enter the land in violation of the decree for injunction. Order 21, Rule 32 (1) provides as follows :

'Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or 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 restitution of conjugal rights by the attachment of his property or, in the case of the decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.'

The question of taking action under this rule arises only when a party against whom a decree for injunction has been passed wilfully fails to obey it. According to the decree-holder, the judgment-debtors have not actually violated the decree but are only attempting to do so. The decree can be enforced in the manner prayed for in the execution petition only when the judgment-debtors have wilfully failed to obey the decree. Learned counsel for the respondent stated that his client was still in possession of the land. Courts have no power to enlarge the provisions of Rule 32 so as to take action even in the case of an attempt to act in contravention of the decree.

As the decree-holder has no case that the judgment-debtors have entered the land or are cultivating it, the execution petition is clearly premature and the concurrent orders allowing the same have to be set aside. In this view we do not propose to decide the question whether the judgment-debtors are entitled to cultivate the land notwith-standing the terms of the decree. Even assuming that they are not, no action can be taken under Rule 32 as the decree-holder has no case that the decree has been violated. This question can be decided if and when the judgment-debtors wilfully fail to disobey the decree and the decree-holder applies for relief.

3. It follows that the concurrent orders can-not stand. We, therefore, allow the second appealand set aside the concurrent decisions of the Courtsbelow. In the circumstances of the case we do notmake any order as to costs.


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