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V.S. Alwar Ayyangar Vs. Gurusamy thevar - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1780 of 1979
Reported inAIR1981Mad354
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rule 32 - Order 39, Rule I; Specific Relief Act, 1963 - Sections 39; Tamil Nadu Agricultural Land Record of Tenancy Rights Act, 1969 - Sections 16-A
AppellantV.S. Alwar Ayyangar
RespondentGurusamy thevar
Appellant AdvocateR. Alagar, Adv.
Respondent AdvocateN.S. Umapathy, ;Rai and Raj, Advs.
Cases ReferredPeriathambi Goundan v. District Revenue Officer
code of civil procedure (act v of 1908) order xxi rule 32--execution of decree for permenant injunction by detaining the judgment--debtor in civil prison--judgment debtor claiming rights of cultivating tenant and also the bar under section 16-a of tamil nadu agricultural lands record of tenancy rights act (x of 1969)--whether civil court can order execution against the judgment debtor--held in affirmative ; the decree-holder filed an execution petition against the judgment debtor, praying for detention of the judgment- debtor in civil prison as the latter was interfering with the possession of the lands of the decree-holder. the judgment- debtor resisted the execution on the ground that he is a cultivating tenant in possession of the suit lands, having obtained a declaration as such, by.....1. this revision arises in execution of a decree for a permanent injunction. the decree was passed on a clear finding that the decree holder was in possession to the suit land and the judgment debtor was seeking, to interfere with that possession. in the execution petition, the decree holder complained that the judgment debtor was seeking to interfere with that possession. in the execution petition, the decree holder complained that the. judgment debtor had willfully disobeyed the court's injunction and accordingly prayed for the judgment debtor's detention in civil prison as the appropriate mode of execution against him. the executing court has now dismissed his execution petition.2. before the executing court , the judgment debtor had objected to execution being levied against him on.....
1. This revision arises in execution of a decree for a permanent injunction. The decree was passed on a clear finding that the decree holder was in possession to the suit land and the judgment debtor was seeking, to interfere with that possession. In the execution petition, the decree holder complained that the judgment debtor was seeking to interfere with that possession. In the execution petition, the decree holder complained that the. judgment debtor had willfully disobeyed the Court's injunction and accordingly prayed for the judgment debtor's detention in civil prison as the appropriate mode of execution against him. The executing Court has now dismissed his execution petition.

2. Before the executing Court , the judgment debtor had objected to execution being levied against him on the score that he was entitled to possession of the land. He stated that subsequent to the decree for injunction passed by Court - Decree Evidence' of its willful exist - Onus lies on proceeding for ex-judgment debtor the Court, he obtained a declaration from a Record Officer that he was 4 cultivating tenant of the land.

3. Mr. Umapathi, learned counsel for the judgment debtor, stressed this circumstance in his argument, although the Court below did not particularly rely on this aspect while dismissing the execution petition. Mr. Umapathi relied on Section 16-A of Act 10 of 1969. (The Tamil Nadu Agricultural Land Record of Tenancy Rights Act, 1969). He said that the suit in this case was instituted after this section was introduced in the statute book in the year 1972. He pointed oat that under this section, a civil Court's jurisdiction is barred in respect of matters over which the Act has conferred powers in the Record Officer and other authorities. Learned counsel urged that a declaration by the Record Officer naming the judgment debtor as a cultivating tenant of the suit land was sufficient to enable him to resist the execution of the decree against him.

4. Mr. Alagar, learned counsel for the decree holder, however, referred to the fact that after the decree for injunction has been passed against the judgment debtor, it was also confirmed by the appellate Court and only subsequently the judgment debtor had approached the Record Officer and obtained the declaration that he was a cultivating tenant. Mr, Alagar said that the executing Court cannot have regard for what the Record Officer did. but was bound to execute the decree for injunction, without question, when once its terms were violated.

5. As for Mr. Alagar's argument, it' is no doubt fundamental that the executing Court cannot go behind the decree. But it is also fundamental that it is open to a judgment debtor to resist execution on the ground that the judgment against him is a nullity. The executing Court can very well decline to execute a decree if it is satisfied that it is a nullity. . When it does so it is not to be regarded as going behind the decree, for the simple reason that there is no decree at all to go behind. The stand of the judgment debtor in this case is that in view of Section 16-A, the decree for injunction is a nullity.

6. To support the nullity argument Mr. Umapathi for the judgment debtor, does not rely on the express provision In Section 16-A, barring Civil Courts from granting injunctions, for the kind of injunction which is expressly barred under this section is an injunction against a Record Officer and against other authorities from doing their duty under the Act In this case, the injunction granted by that type, but an injunction against the judgment debtor from interfering with the decree-holder's possession.

7. At the ' trial - of the suit, the judgment debtor raised a plea in defence that he was a tenant entitled to be in possession. The court found that he was not. This finding was upheld in appeal concurrently by the Sub Court and by this Court. The' details of the finding were that the person in possession of the land was not the judgment debtor but the decree-holder,. that the judgment debtor was only a servant who had been engaged by the decree-holder under a service aggreemeent to do specified jobs, like watering the field and the like, that even this agreement had been terminated and that, in these events the judgment debtor had thereafter no cause to enter the suit or otherwise interfere with the decree-holder's possession. These are findings with the judgment debtor has to reckon with.

8. The judgment debtor's stand before me, however ,.is that it is precisely against findings of this sort by a civil court that the bar under Section 16-A operates and is intended to operate According to Mr. Umapathi, the question whether someone is a cultivating tenant of a given land is quite, within the province of a Record Officer under Section 3 of Act 10 of 1969, and that being so, to that extent the Civil Court's jurisdiction is taken away by Sec. 16-A. If this argument of Mr. Umapathi is tenable, then the judgment debtor could very well resist the execution of the decree against him. I shall, therefore, proceed to examine this question in all its aspects.

9. One minor matter can, however, be disposed of first. This touches one aspect of the construction of See. 16-A. It arises out of an argument of Mr. Alagar which was based on the fact that at the time' when the court tried the injunction suit and passed a decree for a permanent injunction, the judgment debtor had not even applied to the Record Officer for a declaration under Section 3 of the Act 10 of 1969. 1 do not, however, think that the ouster of civil court's jurisdiction under Section 16-A is dependent upon the actual pre-existence of an order of the Record Officer, or even the actual pendency of certain proceedings before the Record Officer. On the contrary, the section declares a bar in general terms in matters of the kind and nature described in the section. The bar, therefore, operates irrespective of- whether a Record Officer has entered upon this task or not. ' The section, in general terms. bars the civil courts from exercising jurisdiction in the kind of matters which the Record Officer or other statutory authorities are empowered to decide under the Act. in these events, the fact that the judgment debtor happened to obtain a declaration from the Record Officer only subsequent to the decree of the civil court is not, therefore, to the point. Indeed, he may not have applied to the Record Officer at all for a declaration. Yet, even in such a ease, it is open to him to invoke the statutory bar in order to urge that the decree passed against him earlier is a nullity because it is a decree passed in contravention of Section 16-A.

10. The question which properly falls for decision in this case is therefore whether the judgment debtor can escape execution of the decree for injunction by reference to Section 16-A. There are cases in the books which show that the bar under the section does not touch the jurisdiction of courts to get on with suits which had already been instituted before the section came into the statute book. in the present case, however, the injunction suit was brought in 1974, subsequent to the enactment of Section 16-A.

11. As to the precise scope of the bar under Section 16-A against the court's entertaining and disposing of a suit of the present kind, there was considerable discussion at the bar, both generally and with particular reference to the course of proceedings between the parties in the present case.

12. On the general question relating to the construction of Section 16-A, Mr. Alagar pointed out that a recent Full Bench of this court had clearly demarcated the bounds within which the bar under that section operates. The reference is to Periathambi Goundan v. District Revenue Officer, (FB). He urged that the Full Bench decision squarely governed the present case. Mr. Umapathi, on the other hand, submitted that the Full Bench were immediately concerned in the case before them with a suit instituted prior to the introduction of Section 16-A. His thesis was that the observations of the Full Bench must be regarded as obiter in so far as they related to the position of civil courts subsequent to the introduction of Section 16-A.

13. As to the last argument of Mr. Umapathi, I do not find I am in any way deterred from adopting even an obiter from the Full Bench, assuming it to be an obiter, as part of my reasoning. For by doing so, I would only be converting the dicta of the' Full Bench into the ratio decidend of this decision. I am, however, quite conscious of the distinction on facts between this case and the 'case before the Full Bench. What we have here is a suit instituted subsequent to the enactment of Section 16-A. And, although it was brought as a suit for a bare injunction, the defence to the suit was that the suit land had been demised to a judgment debtor. was, therefore, necessary for the court to go into the nature of the legal relation between the decree-holder and the judgment debtor and the nature of the latter's nexus to the suit land, as matters incidental, at any rate, to the relief claimed in the suit, namely, injunction. Mr. Umapathi is argument, however, was that if the court could not avoid going into such issues as these, then the suit itself, even 'though for a bare injunction, could not remain outside the bar set by Section 16-A.

14. The judgment of the Full Bench does not countenance this argument of Mr. Umapathi. I shall explain how. We first start with the position that the concern of Act 10 of 1969 is the preparation of a record of tenancy rights of agricultural lands in every village. The responsibility for making a record of this kind is primarily on the Record Officer, subject to appeal and revision. The record to be drawn up must contain factual data as to (i) the demised lands, (ii) those who are owners of such lands and (iii) those who are cultivating tenants. - The distinct power which the Act must' be taken to have conferred on the Record Officer is the power to draw up the record with the relevant facts and figures. it is important that the record must be drawn up correctly this Means that the Record Officer must have the power to determine facts, more especially in cases where they are in doubt or in dispute. The Act may not have expressly empowered the Record Officer to adjudicate on disputed tenancies and the like, but it is implicit in his power that he should go into such disputed facts in order to draw up the record aright. To hold otherwise would be to render him impotent to discharge his statutary function, right when it becomes most necessary for him to exercise it that is to say when some or all of 'the basic facts are controversy. While there can be no doubt about the sum total of amplitude of the Record Officer's power under the statute, a distinction can be drawn between one aspect of the power and another. The distinction, which is relevant to the present discussion, is this: whereas the power to draw up the record of tenancy rights "is a,' power expressly conferred on the Record Officer by the statute, the power to investigate, or inquire into, disputed facts of an incidental nature, relevant to the preparation of the record, is not expressly so conferred, although it is an implied, antillary to incidental power.

15. The Full Bench considered the implications of the Record Officer's power in the context of the bar under Section 16-A. They laid down that the' Record Officer has exclusive jurisdiction. under the Act only to draw up the,, particulars in the record of rights. To, that extent and to that extent alone,, the civil court's jurisdiction is excluded, ousted and barred. In the opinion of the Full Bench, the bar of civil court's. jurisdiction extends no farther. The, learned Judges granted that the Record,1 Officer can undoubtedly exercise powers to investigate into ancillary I but the court's jurisdiction is not ancillary matters, and the court's jurisdisticton is not thereby excluded under Section 16-A, on those matters. Thus, the Record Officer may have power to decide whether an individual is cultivating the land. But this is an incidentalmatter over which his jurisdiction is not exclusive, that is to say, it does not exclude the jurisdiction of civil courts. Likewise, a court of law may have jurisdiction to try a suit for an injunction by a land owner. The defendant might raise a plea in defence that he is a cultivating tenant. The court has to decide this issue at the trial. The decision of the Full Bench is that the court in such a case is not debarred from doing so merely because the question in dispute is but an incidental matter which a Record Officer might himself have to decide as part of his inquiry while drawing up the record of tenancy rights.

16. This, as I understand it, is the line of reasoning of the Full Bench. I adopt it, with respect, as my own in this case. I do not rule out the scope for a diametrically opposite view as to the effect of Section J6-A, founded on the well-known rule of construction that when the law confers a power on someone in general terms, there necessarily inheres within the scope of that power (although left unexpressed), all ancillary, incidental and necessary powers without which the power expressly conferred cannot be purposefully exercised. On this doctrine of implied, incidental or ancillary powers, -which, as I said, is a fundamental rule of construction, it might well be argued that Section 16-A would act as a bar to exclude from the cognisance of civil courts not only matters which fall within the ambit of the Record Officer's express power, but also those which fall, in addition, within the ambit of his implied, incidental, or ancillary powers. If this argument holds good as a true construction of Section 16-A, then it must be granted that the 'civil court would be barred from adjudicating on the ancillary issues as well. On such a view, the court would, for instance, be powerless to adjudicate on the claim of the defendant as a cultivating tenant even in a suit for a bare injunction. If a court actually adjudicates on such an issue, the decision may have to be treated as a nullity, according to this construction of Section 16-A, on the ground that it is in contravention of the bar.

17. I, however, do not fancy this1construction of the statutory provisions which tends to exclude the civil court's jurisdiction even from matters which might only fall incidentally within the scope of the power of the Record Officer. I reject the construction on the principle that whatever function the doctrine of implied powers can have on the ambit of the exercise of the power as such, it cannot defeat the other basic tenet of our legal system which is that statutes ousting the jurisdiction of courts must be strictly construed. It is in this respect that the decision of the Full Bench is important and attains its fullest stature. The judgment accepts the existence in the Record Officer of implied or ancillary powers, but, at the same time, it does not allow their existence to rob the courts of their jurisdiction beyond what the strict construction of the bar under Section 16-A warrants. With respect, the Full Bench must be held to have struck a golden mean amidst a clash of principles, by sagaciously holding that both the Record Officer and the civil court would have concurrent jurisdiction in respect of such ancillary issues as may arise, in the making up the record of tenancy rights on the one hand and in the adjudication of civil suits, on the other. Thereby the learned Judges of the Full Bench have furthered the statutory purpose of bringing into being an authentic record of tenancy rights in this Stale, and at the same time, they have also circumscribed the ouster of the civil court's jurisdiction to the barest minimum consistent with the language of the exclusory provision in Section 16-A. With respect, therefore, I apply the Full Bench ruling to the present case and hold that the decree for permanent junction passed against the judgment debtor is not a nullity, but a valid decree rendered in the legitimate exercise of the Court's jurisdiction.

18. But the problem arises, as Mr. Umapathi, constantly reminded me, as to what is to happen to the declaration made by the Record Officer that the judgment debtor is a cultivating tenant of the suit land under the decree-holdor What is the judgment debtor to do with such a declaration, especially after many a battle has been fought by him with the decree-holder both before the statutory authorities and before this Court sitting in writ jurisdiction? The papers in this case show that after the Record Officer had included the judgment debtors name in the L record of tenancy rights in the first instance the decreeholder canvassed that decision in appeal. The appellate authority remanded the matter for a fresh and further inquiry. The decree holder then filed a writ petition in this Court objecting to the inquiry. The writ petition was dismissed. The decree holder filed a writ appeal. That appeal was also dismissed. The Record Officer has since carried out the remand, but only to reiterate his earlier declaration that the judgmpnt debtor is a cultivating tenant under the decree-holder. The decree- . holder has appealed against this latest order, and the appeal is said to be pending. At this time of the day, it is quite within contemplation that the appellate authority might reverse the Record Officer's decision. Suppose, on the contray, the appeal were dismissed. Suppose, again that a further revision also ends in confirmation of the Record Officer's order? Prospects such as these which cannot be ruled out, would conclude the determination that the judgment debtor is a cultivating tenant, so far, at any rate, as proceedings under Act 10 of 1969 are concerned. The Legis presumption, although rebuttable, as to the correct ness of the entries in the record of tenancy rights drawn up under the Act. Extracts of entries from this record can play an important part in proceedings between the parties which might remedial legislation, such as, the Madras Cultivating Tenants Protection

A ct, 1955, the Madras Cultivating Tenants (Payment of Fair Rent)Act, 1956 and the like. With a declaration under the Act in favour of the judgment debtor that he- is a cultivating tenant, which is by no means a scrap of paper, and with an executable decree for injunction against the same individual by a competent Civil Court, which is by no means, a paper decree ,the situation in the present case can only be described as a piquant situation. It is more so, and no less, when one takes note of the fact that this Court sitting in second appeal has upheld the A, decree for injunction, whereas at the later stage this Court sitting in writ jurisdiction nevertheless preferred to uphold the order of the statutory authorities, rather than the decree for in-junction. What is more, in their order later has declared arise under various pieces of dismissing the decree-holder's writ appeal, the appellate Bench of this Court had actually sustained the view that the statutory authorities functioning under Act 10 of 1969 had every jurisdiction to go into the issue as to whether the judgment debtor is a cultivating tenant, despite the course of proceedings in the suit for injunction. The irony of the situation is all the greater because the learned Judges sought support for their proposition from the Full Bench decision in Periathambi Goundan v. District Revenue Officer(1980) 2 Mad LJ.

19. While, undoubtedly, the situation above described is quite anomalous, embarrassing the parties with almost irreconcilable findings in two sets of proceedings, both of which have been upheld by this Court unhesitatingly at one time or another, such a situation, in my judgment can accord no excuse whatever to the judgment debtor to flout the decree for injunction. It may be that in the fullness of time, with a final and conclusive order wholly in favour in the record of rights proceedings, the judgment debtor might not be left stranded without a suitable remedy to enable him to resume possession and proceed to exercise his rights as a cultivating tenant. But until that happens, and until he is helped by a competent decree or order to obtain possession, he is bound by the decree for injunction which is even now in force and which restrains him form for ever interfering possession. The wriggle out of an injunction of this kind and flourish in the court's face an entry in his favour in the record of tenancy rights. An insertion of that kind, by itself; cannot provide the judgment debtor with any excuse to take the law into his own hands. and enter possession of the decree-holder's fields, violating the terms of the injunction. A Court of law cannot sit still with folded hands and countenance its injunction being treated with indifference or scant courtesy by the party against whom it was directed and who is bound to obey its terms. This is particularly so, when, as it happened in this case, the decree for injunction had been confirmed in successive appeals, right up to this Court. Even' the plea of nullity, based on Sec. 16-A is now found on examination to be with the decree-holder's judgment debtor cannot without substance. There can, therefore, be no defence whatever open to

the judgment-debtor against executing the decree for injunction in accordance with Or. 21 R. 32.

20. The execution chapter in the Code may be regarded, generally speaking, as having been devised to aid and assist the decree-holder to obtain the fruits of his decree. In a decree for a permanent injunction, disobedience by the judgment-debtor might take the form of interference with the decree holder's possession. The Code of Civil Procedure accordingly provides for the arrest, and detention in the civil prison of the erring judgment-debtor, as a means of enforcing the injunction. The thing about detention in civil prison is that it would effectively prevent the judgment debtor from physically interfering with the decree holder's possession: No doubt, confinement of the judgment debtor in the civil jail would also prevent him from going to other places which are not covered by the. injunction. That, undoubtedly, is a serious defect inherent in this process of execution. But Order 21 Rule 32 cannot be subjected, on that account, to judicial neglect or deserted (desertion), or to the kind of carping , criticism to which a similar provision for incarceration in Order 21 Rule 40 of the Code was subjected sometime ago in a judgment of the Supreme Court. That is because I am able to find something ,more. in Order 21 Rule 32 than a mere ,Procedural aid to harried decree-holders. ~As I conceive it, the Court's power under Order 21, Rule 32, (sic) than a mere procedural aid to harried decree-holders. As I conceive it, the Court's power under 0. 21, Rule 32, to is end a judgment debtor to civil prison for violating an injunction is, very much a part of the Court's authority to see ,to it that its fiat runs. When once ;ft is found that a judgment debtor had disobeyed an injunction with impunity, the Court owes it to itself to make that 'individual realise that it does not pay to defy a Court decree. Not to exercise the Court's power in this mod-A in appropriate cases might verily underlining the respect which litigants in a civilized community owe to their judi11cial institutions.

21. Mr. Umapathy, however, submitted that no proof had been adduced against the judgment debtor in the present case that he had flouted the Court's injunction in any way. He pointed out that that indeed was the factual basis for the dismissal of the execution petition by the Court below. Learned counsel submitted that execution can be levied under O. 21 R. 32 only in cases, where it is established that the judgment debtor had willfully disobeyed the decree for injunction. The implication of the rule, according to learned counsel, is that it is for the decree-holder to prove not only the act of disobedience of which he accuses the judgment debtor, but also willfulness in that act. Learned counsel's point was that in this case the decree holder had signally failed at the enquiry to make out his allegation that the judgment debtor had violated the injunction. Learned counsel particularly referred to the allegation made by the decree holder in the affidavit in support of his execution petition. The allegation was to the effect that when the decree holder, accompanied by his men, proceeded to the suit land on 6-1-1978, for watering the crop, the judgment debtor prevented them from doing so and also threatened to harvest the crop himself. Learned counsel said that the court below had pertinently pointed out, in its order under revision, that neither the decree holder nor any of his servants had come forward at the inquiry to tender evidence speaking to the facts alleged in the affidavit. Learned counsel, accordingly, submitted that the court below was quite justified in dismissing the execution petition for no other ground than that of sheer want of proof.

22. I agree with Mr. Umapathi in principle that for an executing court. Under O. 21, Rule 32 of the Code, there must be evidence of wiful disobedience of a decree for injunction. But I do not agree with him when he says that there is no such evidence in this case. The record, no doubt, shows that no one from the petitioner's side had entered the witness box to testify against the judgment debtor. I do not, however, think that thereby the Court was deprived of proof of the kind sufficient to invoke the provisions of Or. 21 Rule 32. For the judgment debtor himself had saved the decree holder from having to adduce evidence of any kind in proof of his allegations, The judgment debtor had filed before the executing Court more than one affidavit in which he explained what 'the facts were. From these affidavits it is plain to see that notwithstanding the decree for injunction passed against him, the judgment debtor got into possession of the suit land. What is more, he asserted that he had a right to remain in possession and could, by no means be treated as a trespasser. He even went to the extent of saying that he alone was entitled to harvest the standing crops on the land and appropriate them to himself. In the teeth of these brazen assertions by the judgment debtor as to his possession and in the fact of the stand he took in justification of that possession the Court below was not justified in holding that there was no proof of any willful disobedience by the judgment debtor of the decree for injunction. The conclusion of the Court must really be attributed either to sheer oversight or to cross incomprehension of the judgment debtor's own affidavits.

23. It is true that in his counter-affidavit the judgment debtor had entered a flat denial of the decree holder's allegation that he obstructed the decree holder and his servants on 6-1-1978, when they attempted to water the crop, But this bare denial of the decree holder's allegation must be read in the context of the judgment debtor's own positive stand that he it was who was in possession of the suit land. On his own showing, therefore, the judgment debtor 1had clearly admitted that he not only I violated the terms of the injunction, but fairly wallowed in doing so.

24. I may mention at this stage that before I heard arguments in full on the merits of this revision I wished to explore the possibility of obtaining an undertaking from the judgment debtor not to interfere with the decree-holder's possession at least in future. Learned counsel for the decree-holder represented that his client would be satisfied with such an undertaking. The judgment debtor appeared before this Court and the proposal was put before him as a means of avoiding an order, one way or the other, in terms of 0. 21, rule 32. The Judgment-debtor however, was not agreeable to this course of disposal. He maintained before me that he- was not only in possession, but, entitled to retain possession of the suit land, He, however, added that if the decree-holder were to take a special oath before the village deity and swear that the suit land had not been leased to him as a cultivating tenant,-then in that event, he would remove himself from the suit land, but not otherwise. This attitude of the judgment debtor seemed to me to be a recalcitrant attitude. It made me proceed with the hearing of the provision, with results which I have already set out in the foregoing paragraphs.

25. As earlier mentioned, the relief which the decree holder had prayed for in his execution petition is detention in civil prison of the judgment debtor science the evidence shows that this is a case of willful disobedience, the law must take its course. The result is that the order of the Court below is set aside, and the decree holder's execution petition is ordered. However, sitting in revision as I am, I desist from pronouncing an order myself for the detention in civil prison of the judgment debtor. That had better be done by the Court below. Accordingly. Thereby direct the' Court below to draw up the appropriate order of detention, in accordance with the law, and after hearing the parties. The civil revision petition is thus allowed. The decree holder will have his costs from the judgment debtor.

*To revise order of Dist. Munsif, Sri- villiputtur, D/- 20-4-1979.

26. Petition allowed

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