1. Neither the decree under execution nor the application for its execution prior to E.P. No. 546 of 1945 are before me, and I have to gather the contents of these documents from what has been set out in the judgment of the lower appellate Court.
2. The operative portion of the decree in the suit filed by the plaintiff-respondent-decree-holder against his wife for restitution of conjugal rights was apparently:
The Court having directed (by an order dated 12th March, 1943), the plaintiff to give an undertaking within tree days that he should reside with his wife, the third defendant, away from his parents for about a month, failing which the suit will stand dismissed with costs and further holding that if the plaintiff gives the undertaking, there will be a decree in favour of the plaintiff for restitution of conjugal rights.... The plaintiff having given the necessary undertaking on this date, the Court doth order and decree that the third defendant do go to the plaintiff and render conjugal duties, that in case the third defendant, does not go and render such rights, the plaintiff do take the necessary process through Court to get the third defendant to his house for securing conjugal rights and to live with him etc.
The wife was a minor when E.P. No. 255 of 1943 and E.P. No. 92 of 1944 were filed, where the prayer was for the attachment of the moveables of her father. Those applications were dismissed. After the wife, the judgment-debtor, became sui juris. E.P. No. 546 of 1945 was filed with prayers in the alternative (1) for restitution of conjugal rights; and (2) on the failure of the judgment-debtor to comply with the terms of the decree, to attach her moveables.
3. The learned district Munsiff to whom the application for execution was made dismissed the application. On appeal the learned Subordinate Judge directed execution to proceed by attachment of the wife's, judgment-debtor's, moveables.
4. Order 21, Rule 32, Civil Procedure Code, lays down:
Where the party against whom a decree... for restitution of conjugal rights...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.
There can certainly be no doubt about the fact, that the only occasion, when, by way of an application for execution of the decree, an opportunity was offered to the judgment-debtor herself to obey the decree, was when E.P. No. 546 of 1945 was filed. To reiterate, the judgment-debtor was a minor before the date of E.P. No. 546 of 1945. Nor can there be any doubt about the fact, that she failed to obey the decree after E.P. No. 546 of 1945 was filed. Incidentally, at no time after the decree was passed, did the wife live with the husband either in compliance with the decree or independently of it. The refusal of the judgment-debtor now to live with her husband, expressed in unequivocal terms, seems to me to be 'wilful' within the meaning of Order 21, Rule 32, Civil Procedure Code. Therefore the right of the decree-holder to ask to execute the decree in the manner provided for by Order 21, Rule 32, Civil Procedure Code, cannot be denied. I am unable to accept the contention of the learned advocate for the appellant, that the expression 'wilfully' should be construed as ' unreasonable.'
5. I am, however, of opinion that the trial Court was right in refusing execution-I accept the contention of the learned advocate for the appellant, that the use of the expression 'may' in Order 21, Rule 32, Civil Procedure Code, vests the executing Court with a discretion. It is unnecessary to point out that the decree under execution is a decree for restitution of conjugal rights. Of course the discretion has to be exercised in a judicial manner. In the present case the judgment-debtor being a woman, after she wilfully refused to obey the decree, the only method of execution the appellant could ask for was by attachment of her moveables. It does not necessarily follow that in every such case of wilful disobedience the Court is bound to levy execution by attachment of the defaulting party's moveables.
6. The learned District Munsiff in paragraph 4 of his order observed:
I find that, as the wife refused to live with her husband on the grounds mentioned, this petition need not be ordered. Hence this petition is dismissed.
The learned District Munsiff, it should be remembered, was dealing not merely with an application for restitution of conjugal rights, but also with an application in the alternative for the attachment of the moveables in case the judgment-debtor defaulted compliance with the decree. Earlier in his order the learned District Munsiff obviously accepted as true the contentions of the judgment-debtor set out in her affidavit filed in E.P. No. 546 of 1945. He exercised his discretion a discretion vested in him by the terms of Order 21, Rule 32, Civil Procedure Code and decided that this was not a fit case where execution should be levied by the attachment of the judgment-debtor's moveables. I am unable to find anything in the judgment of the lower appellate Court to indicate that the learned Subordinate Judge purported to exercise a discretion vested in him. Certainly there was nothing in it to show that he was of opinion that the discretion exercised by the learned District Munsiff was based upon erroneous grounds. The learned Subordinate Judge apparently was of opinion that once there was a wilful failure to obey the decree within the meaning of Order 21, Rule 32, Civil Procedure Code, the decree-holder was automatically entitled to the attachment of the judgment-debtor's moveables. In fact the learned Subordinate Judge used the expression ' entitled ' in paragraph 2 of his judgment.
7. Sitting in second appeal I should normally be reluctant to interfere with an order based upon the exercise of jurisdiction; but here we have a case of an order based on the learned District Munsiff's exercise of discretion being reversed on appeal by a learned Judge who did not purport to exercise any discretion at all. This, I think, is a fit case where the order of the trial Court should be restored.
8. This second appeal is allowed, the order of the lower appellate Court is set aside and that of the trial Court is restored. The appellant will be entitled to her costs both in the lower appellate Court and in this Court.
(Leave to appeal is refused.)