Partly allowed

Gopinathan Pillai v. v.Rajappan

Kerala HC20 Feb 2008CRP/2152/2001

Case brief

AI extract

What is this about?

In a revision petition, the High Court addressed the validity of awarding damages by an executing court without attaching the property for six months under Order XXI Rule 32 CPC. The court held the lower court order permitting compensation was valid.

What did the court decide?

Revision allowed in part; compensation of Rs.5,000 confirmed; direction to executing court to attach property and proceed under Rule 32 sub-rule (3); attachment ceases on payment.

Gopinathan Pillai Vs v.Rajappan — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929

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CRP.No. 2152 of 2001 G

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AGAINST THE ORDER DATED 11/04/2001 IN EA.217/1995 IN EP.NO.112/1995 IN OS.89/1991 OF MUNSIFF'S COURT, KARUNAGAPPALLY

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REVN. PETITIONER: THIRD JUDGMENT DEBTOR:

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GOPINATHAN PILLAI, AGED 49, KAROOR VEEDU, PAVUMBA VADAKKUM MURI, PAVUMBA VILLAGE, KOLLAM.

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BY ADV. SRI.P.B.SURESH KUMAR(QUILON)

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RESPONDENTS: DECREE HOLDER & JUDGMENT DEBTORS 1 AND 2:

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V.RAJAPPAN, AGED 45, MANOJ BHAVAN, (KUZHIYANCHERRYVILA AND ALSO KNOWN AS KIZHAKKEVILA) PAVUMBA VADAKKUM MURI, PAVUMBA VILLAGE.

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T.SUKUMARI, AGED 33 YEARS, MANOJ BHAVAN, (KUZHIYANCHERRYVILA AND ALSO KNOWN AS KIZHAKKEVILA) PAVUMBA VADAKKUM MURI, PAVUMBA VILLAGE.

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V.RAMACHANDRAN, AGED 44, ATHIKKATTUVILAYIL, PAVUMBA VADAKKUM MURI, PAVUMBA VILLAGE.

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G.RAMACHANDRAN, AGED 48, BEENABHAVANATHU, PAVUMBA VADAKKUM MURI, PAVUMBA VILLAGE.

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R1 AND R2 BY ADV. SRI.J.OM PRAKASH

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN, J.

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C.R.P. NO. 2152 OF 2001 G

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Dated this the 20^th February, 2008

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O R D E R

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Respondents 1 and 2 filed O.S.No.89 of 1991, Munsiff's Court, Karunagappally, against respondents 3 and 4 and the revision petitioner for a permanent prohibitory injunction. The revision petitioner was the third defendant in the suit. The trial court decreed the suit on 18.2.1991. As per the decree, the defendants were restrained from trespassing into the plaint schedule property, from cutting open a road through the property or from altering the nature of the property or committing any waste in the property. The decree has become final.

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Alleging that the judgment debtors violated the decree and cut open a pathway, having a length of 150 metres and width of 3 metres, through the western side of the plaint schedule property on 26.6.1995 and that the judgment debtors destroyed tapioca, three mango trees, tamarind trees etc., the decree holders filed E.P.No.112 of 1995 with a prayer to realise the loss of Rs.5,000/- by attachment and sale of the properties of the judgment debtors. After the filing of the Execution Petition, the decree holders filed E.A.No.217 of 1995 claiming a sum of Rs.17,500/-, after

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C.R.P. NO.2152 OF 2001

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assessing the loss sustained by them. This amount includes Rs.5,000/already mentioned in the Execution Petition.

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The judgment debtors denied the allegations made against them. They contended that they did not violate the decree, there was no trespass by them, they did not cut open a pathway through the western side of the plaint schedule property and that they did not cut trees as alleged. It was contended by the judgment debtors that a road having a width of three metres was in existence on the western side of the plaint schedule property even at the time of institution of the suit and that the pathway was being used by the people of the locality as of right.

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To prove the contentions, the decree holders examined PWs.1 to 4. The first decree holder was examined as PW1. The Commissioner, who inspected the property and assessed the loss, was examined as PW2. PW2 stated in the report and in evidence that the pathway was cut open and that trees were cut and removed only few days before his insepction. The Commissioner is an experienced senior member of the Bar. A neighbour of the decree holder was examined as PW3, who deposed that she had witnessed the incident wherein the judgment debtors and others violated the decree. An Assistant Engineer of the Kerala State Electricity Board was examined as PW4, whose evidence

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was held to be irrelevant. The revision petitioner, third judgment debtor, was examined as DW1. The Head Surveyor of the Department of Survey was examined as DW2. DW3 is a neighbour, who stated that the way was in existence on the western side of the plaint schedule property.

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Learned counsel for the petitioner submitted that PW1 admitted in evidence that even before the Execution Petition was filed he had transferred the property to his daughter. The counsel submitted that therefore the Execution Petition at the instance of the decree holder was not maintainable.

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The court below, on appreciation of evidence, held that the judgment debtors had violated the decree and committed the acts which were complained of by the decree holders. The evidence was discussed in detail in the order impugned in this Revision. After carefully going through the order passed by the court below, I am of the view that no interference is called for in the finding of fact recorded by the court below that the judgment debtors had violated the decree. Normally, the revisional court would not interfere with a finding of fact rendered by the executing court unless the findings are so perverse or illegal or without jurisdiction. I agree with the reasoning and conclusion made by the court below that the judgment debtors had violated the decree.

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The court below recorded the submission of the decree holders that “the violation of decree is already contained and stopped by restoring the property in its original position and there is no continuance of violation at present”. However, the court below awarded a sum of Rs.5,000/- as damages on account of the loss sustained by the decree holders. The judgment debtors were directed to pay a sum of Rs.5,000/- within a period of one month, on failure of which, the decree holders were held entitled to realise the same “by modes prescribed by law”.

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Learned counsel for the petitioner (judgment debtor No.3) submitted that the court below was not justified in passing an order awarding damages in a proceeding initiated under Rule 32 of Order XXI of the Code of Civil Procedure. The submission of the counsel is that the court could either pass an order for detention of the judgment debtor or an order attaching his property. If the decree is not obeyed after the attachment continued for a period of six months, the Court could sell the property and award to the decree holder such compensation as the Court thinks fit. The submission of the counsel is that unless the property is attached as provided in Rule 32 and an opportunity is granted to obey the decree, there could be no order granting damages. In other words, his contention is that damages cannot be awarded and for execution of the

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same, the property cannot be attached and sold. He relied on the decision in Samuel v. Madhavan (1995 (1) KLT 384). In Samuel's case it was held thus:

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“The above provisions would indicate that award of compensation is in the discretion of the court where there had been an attachment of the property of the judgment debtor and the decree holder applied for sale of the same during the period of attachment remained in force, viz., six months. Where there was no attachment and sale under sub-rule (3), award of compensation even as a measure of damages seems to be impermissible. In other words, outside the provisions of Order XXI Rule 32(1) and (3), award of compensation for the loss sustained by the decree holder at the hands of the violator of the decree would be illegal. The procedural requirements of the above rules will have to be satisfied to sustain the award of compensation.”

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Learned counsel for the respondents/decree holders contended that the power of the executing court is not confined to what is provided under Rule 32 of Order XXI and that the executing court has all the powers as provided under Section 51 of the Code of Civil Procedure. He makes particular reference to clause (e) of Section 51. The relevant portion of Section 51 reads as follows:

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“ 51. Powers of Court to enforce execution :- Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decreeholder, order execution of the decree --

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(a) by delivery of any property specifically decreed;

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(b) by attachment and sale or by sale without attachment of any property;

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(c) 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;

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(d) by appointing a receiver; or

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(e) in such other manner as the nature of the relief granted may require;”

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It is also submitted that in the decision in Samuel v. Madhavan , Section 51 C.P.C. was not adverted to. The source of power in regard to the various modes of the execution is contained in Section 51. Apart from the modes provided in clauses (a) to (d), a general power is provided in clause (e) enabling the executing court to order execution of the decree in such other manner as the nature of the relief granted may require. Rule 32 of Order XXI does not restrict the power of the executing court to order execution of the decree in such other manner as the nature of the relief granted may require.

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For the purpose of dealing with the contentions raised by the petitioner, it is necessary to advert to Rule 32 of Order XXI of the Code of Civil Procedure, the relevant portion of which reads thus:

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“ 32. Decree for specific performance for restitution of conjugal rights, or for an injunction :-- (1) 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 willfully failed to obey it, the decree may be enforced in the case of a decree

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for restitution of conjugal rights by the attachment of his property or, in the case of a 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.

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(3) Where any attachment under sub-rule (1) or subrule (2) has remained in force for six months if the judgment -debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgmentdebtor on his application.

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(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

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(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

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Explanation :- For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.”

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There was divergence of opinion among the High Courts as to whether Rule 32 would apply to cases where decree for prohibitory injunction was

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granted. An explanation was inserted to Rule 32 by the Code of Civil Procedure Amendment Act 22 of 2002. I had occasion to deal with the question in T.Krishnan Namboodiri and others v. T.Damodaran Namboodiri (AIR 2005 KERALA 328), wherein it was held thus:

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“17. There were conflicting views expressed in various decisions of different High Courts as to the applicability of Order XXI, Rule 32 in respect of decrees for prohibitory injunction. Some of the High Courts took the view that sub-rule (5) of Rule 32 of Order XXI cannot be invoked to enforce a decree for prohibitory injunction, while some other High Courts took the view that as in the case of decree for mandatory injunction, sub-rule (5) of Rule 32 of Order XXI can be invoked for enforcing prohibitory decrees as well. The statement of objects and reasons to the Code of Civil Procedure (Amendment) Act, 2002 makes the position clear that the Explanation to Rule 32 was added on the basis of the report of Law Commission and that this amendment is only clarificatory in nature. Therefore, there can be no doubt that sub -rule (5) of Rule 32 of Order XXI can be applied and used to enforce and implement even a decree for prohibitory injunction.”

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Sub-rule (1) of Rule 32 of Order XXI provides that a decree for injunction may be enforced by detention of the judgment debtor in civil prison or by the attachment of his property, or by both. Sub-rule (3) provides as to what should be done after the attachment is effected. It provides that if the judgment debtor has not obeyed the decree even after the attachment remained in force for six months and if the decree holder has applied to have the attached property sold, such property may be sold. Sale of the property is not for realisation of any amount decreed.

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Such sale is for the purpose of awarding such compensation as the court thinks fit, out of the sale proceeds. Sub-rule (4) says that the attachment shall cease where the judgment debtor has obeyed the decree. Sub-rule (5) provides for another remedy for the decree holder, in lieu of or in addition to all or any of the processes as mentioned in sub-rules (1), (3) and (4). That remedy is either for a direction that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court, at the cost of the judgment debtor. The executing court would thereupon ascertain the expenses incurred for the same and recover it as if the same is included in the decree. Therefore, when an act is required to be done by the judgment debtor and even if it is not specifically provided in the decree that in case of failure a particular sum is required for the execution thereof or that a particular sum would be payable by the judgment debtor, the executing court would be entitled to direct to do the act required to be done at the cost of the judgment debtor and to recover the same from the judgment debtor. By a fiction, such expenses shall be treated to have been decreed though there is no such specific provision in the decree.

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By the explanation to Rule 32, it is clarified that “the act required to be done” covers prohibitory as well as mandatory injunction. The expression “the act required to be done” is used only in sub-rule (5)

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and not in sub-rules (1), (3) and (4). Sub-rule (1) speaks of enforcement of the decree. Sub-rule (5) also provides for another method to enforce the decree though the expression “enforce” is not used and instead the expression “direct that the act required to be done may be done” is employed. This also amounts to enforcement. In view of the Explanation, there cannot be any doubt that sub-rule (1) also applies to prohibitory as well as mandatory injunction. I am of the view that the explanation is not confined to sub-rule (5) alone and it covers sub-rules (1) to (4) as well. Though the explanation seeks to explain the expression “the act required to be done” and though the expression “the act required to be done” is absent in sub-rules (1) to (4), the irresistible conclusion that could be arrived at is that the explanation covers all the sub-rules in Rule 32.

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A decree for prohibitory injunction could be of different types. The nature of injunction may be different. In the case of different situations sought to be met by an injunction, the defendant may be restrained from trespassing upon the property; or he may be restrained from committing waste or cutting trees or from obstructing the plaintiff from possessing and enjoying the property; or the defendant may be restrained from ousting the plaintiff from the property. Even a prohibitory injunction can be specifically enforced and the judgment debtors could be

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compelled to obey the decree. If the defendant is restrained from cutting open a way through the decree schedule property and if he does it in violation of the decree, the judgment debtor could be compelled to obey the decree and to restore the property to its original position, by attachment of the property of the judgment debtor as provided in Rule 32 of Order XXI, CPC. Such a decree could also be enforced and executed as provided in sub-rule (5) and the expenses could be realised from the judgment debtor. In certain other cases an act of violation by the judgment debtor cannot be corrected and the decree holder put in the same position as he would have occupied but for the violation. For example, cutting and removing of trees. If in violation of a decree for injunction, the trees in the plaint schedule property are cut and removed, there could be no enforcement of the decree in its literal sense. Even if the property of the judgment debtor is attached and kept alive for six months, he would not be in a position to obey the decree and restore the trees. The result would be sale of the property and award of compensation as provided in sub-rule (3). Even if the violation is not so grave, the consequence would be grave, since the court would be bound to sell the property after six months in such a case as the judgment debtor would be incapable of undoing the mischief which was done already. In such a case, is there anything wrong in the Court passing an order holding that the judgment debtor is liable to compensate the decree holder and in

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awarding compensation for the trees cut ? Or, is it necessary and compulsory that the property of the judgment debtor should be attached and kept alive for six months with the only inevitable result of selling the same and realising the compensation ? If such an interpretation is accepted, even for minor violation of cutting of a small tree, the judgment debtor would be liable to lose his property in order to make payment of a small amount of compensation. Is it not better and reasonable in such cases to fix the compensation and to attach the property, keep it pending for six months enabling the judgment debtor who has violated the decree to pay off the amount and if not, to sell the same? I am of the view that such a course would be not only reasonable but pragmatic as well.

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If the contention of the revision petitioner that compensation cannot be awarded unless the property is attached and proceeded with under sub-rule (3) of Rule 32 is accepted, the judgment debtor would be put in an unevitable position that he could not restore the trees and at the same time, he will lose his property. If the order impugned is implemented with slight modifications, he could salvage the property by paying off the compensation of Rs.5,000/-.

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An argument is possible that in cases where the decree cannot be enforced, whether the nature of the decree is mandatory or

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prohibitory, the act required to be done cannot be specifically enforced. In other words, it can be argued that an act which cannot be undone cannot be enforced or executed by recourse to Rule 32 of Order XXI. I am not inclined to take such a view as it would defeat the very purpose of Rule 32. I am of the view that even such cases could be effectively dealt with by recourse to sub-rule (3) and (5) of Rule 32 as compensation could be awarded under sub-rule (3) though the decree does not make such a provision. The costs can be ascertained and recovered as provided in sub-rule (5) though the decree is silent about the same. Such wide powers are given to the executing court for the purpose of enforcing and executing the decree and to meet any contingency where the decree is violated. If we were to hold that a judgment debtor who has cut and removed trees in violation of the decree cannot be proceeded with under Rule 32 (except for detention in civil prison) but he can be proceeded with only in cases where the act required to be done could be done positively, we would be conceding that the executing court is powerless to deal with a case where something is done by the judgment debtor which cannot be corrected and status quo ante restored. I am of the view that such an interpretation is not plausible going by the scheme of the various provisions of the Code of Civil Procedure including Section 51, Order XXI Rule 32 and Section 47.

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The learned counsel for the petitioner submitted that as no attachment was made in the present case, the direction to pay compensation was improper. By a purposive interpretation, it can be held that in cases where the offending act cannot be undone and it can only be compensated, it would be beneficial to the interests of the decree holder as well as the judgment debtor that the executing court may assess, determine and fix the compensation that would be payable to the decree holder on account of the loss sustained by him and attach the property in the manner provided in sub-rule (3) of Rule 32 for the purpose of realising that amount. Therefore, I confirm the direction to pay the compensation of Rs.5,000/- and direct the executing court to attach the property belonging to the judgment debtors and proceed with the Execution Petition under sub-rule (3) of Rule 32 of Order XXI. If the judgment debtors pay the sum of Rs.5,000/-, needless to say that the attachment shall cease.

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Another contention raised by the judgment debtors is that the decree holder had gifted the property to his daughter even before the acts complained of in violation of the decree were committed, and, therefore, the decree holder is not entitled to execute the decree. In other words, according to the revision petitioner, the decree could be executed only by the donee of the decree holder and not by the decree holder. I am not

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inclined to accept this contention. The decree holder has not assigned the decree but he has only assigned the property. All the incidents of the transfer of immovable property would enure to the benefit of the transferee. At the same time, in order to execute the decree by the transferee, permission of the court is necessary. However, a transfer does not preclude the decree holder from enforcing the decree. The transferor is entitled to protect the interests of the transferee. In 1978 KLT Short Notes Case No.10 at page 5, it was held thus:

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“The decree holder can execute and recover possession of the decree schedule property for recovery of which he obtained the decree under execution though he transferred the property to another, a stranger, after the decree. So long as the assignee has not come on the record by getting himself recognized as an assignee decree holder, the decree holder whose name appears in the decree is therefore alone, competent to execute it and this is so inspite of the explanation to R.16 of O.XXI whereby the assignee is also enabled to execute the decree without a separate assignment of the decree.”

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For the aforesaid reasons, I allow the Revision in part and modify the order passed by the court below in the manner indicated above. No

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order as to costs.

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(K.T.SANKARAN) Judge

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ahz/

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K.T.SANKARAN, J.

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C.R.P.NO. 2152 OF 2001 G