Granted relief to refresh memory on Order 21 Rule 32 CPC that impersonates a non-party in an execution petition cannot be detained or arrested under that rule if not impleaded.
The order dated 02.04.2016 in E.P.No.54 of 2006 is set aside. No execution order against the petitioner is sustainable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 15.06.2021 PRONOUNCED ON 22.06.2021
CORAM
THE HON'BLE MS.JUSTICE R.N.MANJULA
C.R.P.NO.1904 OF 2016
S.Suriyaprakash
Versus
PRAYER: The Civil Revision Petition is filed under Section 115 CPC, seeking to set aside the order dated 02.04.2016 in E.P.No.54 of 2006 in O.S.No.83 of 2005 on the file of the District Munsif, Udhagamandalam, Nilgiris and consequently, to dismiss the Execution Petition as not maintainable.
For Respondents : No appearance
ORDER
(Heard through video conferencing)
This Civil Revision Petition has been filed, seeking to set aside order dated 02.04.2016 passed in E.P.No.54 of 2006 in O.S.No.83 of 2005 by the learned District Munsif, Udhagamandalam, Nilgiris and consequently, to dismiss the execution petition as not maintainable.
E.P.No.54 of 2006 against the petitioner under Or.21 R.32 CPC for disobeying the decree of the court. The petitioner is none other than the son of the 2nd respondent/defendant. Though the petitioner was not a party to the suit, the 1st respondent/plaintiff filed the Execution Petition against him by stating that the petitioner being the family member of the plaintiff, is bound by the decree. The said petition was resisted by the petitioner by stating that he is not a party to suit and the Execution Petition is not maintainable. The Executing Court arrived at a finding that the decree of Permanent Injunction has been obtained by the plaintiff against the defendant and her family members and hence it will bind the petitioner and that he has to be arrested and sent to civil prison for disobeying the decree. Challenging the same, the petitioner has come forward with this Civil Revision Petition.
"1. The provision of Order 21 Rule 32(1) C.P.C is applicable to a party against whom a decree for injunction had been passed, [p.186A-B]
3.1. Although the Forest Department of the State of U.P. and the State of U.P were parties, and, being an employee of the State of U.P., the appellant was in an indirect way bound by the injunction, yet it cannot be said that he was by himself a party to the suit as such against whom the said decree was passed.
3.2 The appellant was not a party to the suit in which the injunction was granted. He need not suffer action under Order 21 Rule 32 C.P.C. or to remain under threat of attachment of his property, more so when he is no longer available at the scene to obstruct any more or to expose his property to such supposed attachment."
"12. Whatever may be the view in England as regards the executability of such decrees solely founded on the observations of Buckley L. J. in '1914-2 KB 930 (F)', where, however, the question did not directly arise, but come to be incidentally, considered in judging the consequences of giving leave in a money suit against defendants in a representative capacity and
the difficulties that would arise if the execution of such decrees against persons other than whom they sought to represent were to be ordered, the principle laid down in '12 Mad 365 (A)', has been consistently followed by our High Court in the later decisions. This principles that a decree for injunction cannot be extended so as to render, those who are not eo nomine' defendants liable for disobedience of the decree is based on sound and equitable grounds. Before any person could be proceeded against personally for disobedience of a decree of court, it must be shown that he was bound personally by the decree and obliged to obey such a decree. To entitle the decree-holder therefore to proceed against such persons who are not parties on record the injunction must be revived against them, which must be by a separate suit and in such a suit an opportunity will be afforded to them to raise appropriate defences. Without a revival therefore of the decree for injunction against these other persons, no proceedings in pursuance of the decree could be started against them.
If no execution of such a decree could be maintained against those persons who are not impleaded as defendants on the ground that they are not bound to obey the decree personally it is obvious that they cannot be held liable for any willful disobedience of such a decree. The result is that not only could there be no execution but there could be no application under Order 39, Rule 2, or under any other provision of law, for proceeding against those persons for such disobedience. We are of opinion that the decrees for injunction in these cases are neither executable nor enforceable against the contesting respondents."
means “by or under that name”. It denotes that unless a party is impleaded in his personal capacity by his name in a suit, no decree holder can seek to execute the decree against him personally.
situations starts. The defendant against whom the decree for injunction is passed has always two options. Either to accept the decree or to challenge it on appeal. In case it is an exparte decree, then it is open to the defendant either to accept the decree or to take steps to set aside the same and then contest the suit. In the event of accepting the decree or the decree became unchallengeable due to its finality, the defendant has no other option except to obey the decree. So the opportunity to obey the decree is always available to the defendant if he has the knowledge about the decree and he has the Will to abide by it.
unmindful of the arrest and detention of the defendant, it should be because he has a different claim on the subject matter. As against him, the plaintiff would get a new cause of action and a new suit can be filed by impleading him as a party by his name. Since the plaintiff who files the suit for injunction can know those persons who had actively assisted the defendant to cause disturbance to him and he is the domitus litis, he has to choose his defendants and implead them as parties to the suit in order to avoid the risk of nonenforceability of the decree against some key persons for want of eo nomine.
For the foregoing reasons, the Civil Revision Petition stands allowed and the order dated 02.04.2016 in E.P.No.54 of 2006 in O.S.No.83 of 2005 passed by the District Munsif, Udhagamandalam, Nilgiris, is hereby set aside. No costs.
Sd/Assistant Registrar(CS IX) Dated: 10/08/2021
*** Corrected as per order of this Court dated 14/09/2021 Sd/- Deputy Registrar(CS)**
Dated: 15/09/2021
//True Copy//
Sub Assistant Registrar
Suk
To
(*) To be Substituted to the order already despatched on 27/08/2021
Copy To
The Section Officer, V.R.Section, High Court, Madras.
C.R.P.No.1904 of 2016
LN(CO) CS/16/08/2021 GN(15/09/2021)
2 issues framed by the court
Whether Order 21 Rule 32 CPC allows arrest of a person not being a party to the decree.
Whether an execution order of arrest against a non-party can be set aside in a civil revision petition.
Colour shows how this judgement treated each authority
Yashpal Singh versus VII Addl.District Judge and othersRelied on¶22
(1992) 2 SCC 504 (Yashpal Singh versus VII Addl.District Judge and others) · Who else cites this
Kodia Gounder and another versus Velandi Goundar and othersRelied on¶29
1995 AIR (Mad) 281 (Kodia Gounder and another versus Velandi Goundar and others) · Who else cites this
2 provisions across 1 enactments
S.Suriyaprakash
M.George Rajkumar
M.D.Lalitha Sayanam
R.N.Manjula
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
R.N.Manjula
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