The executing court must establish wilful disobedience of a decree before ordering detention; failure to do so constitutes a jurisdictional error.

ORDER :

1. Heard the learned counsel appearing for the parties.

2. Exemption Application is allowed.

3. Leave granted.

4. This appeal arises from the order passed by the High Court of Judicature at Calcutta dated 23.09.2019 in CO. No. 3283 of 2019 by which the High Court rejected the CO filed by the appellants herein (judgment debtors) and thereby affirmed the order passed by the Executing Court dated 4.9.2019 in Title Execution Case No. 1 of 2017 arising out of Title Suit No. 25 of 1965.

5. For the sake of convenience, the appellants herein shall be referred to as the judgment debtors and the respondents herein shall be referred to as the decree holders.

6. The facts giving rise to this appeal may be summarised as under:

i. In 1965, the predecessor-in-interest of the decree holders herein instituted a Title Suit No. 25 of 1965 for confirmation of possession and in the alternative for recovery of possession based on title to the suit land and for permanent injunction. The respondents herein are the legal heirs of the original plaintiffs of the Title Suit No. 25 of 1965 referred to above. The Subordinate Judge 2nd Court, Hooghly decreed the suit vide the judgment and decree dated 26.06.1976. The operative part of the decree reads thus:

“Considering the facts, circumstances and evidence on record I, therefore, hold that the plaintiff has been able to establish his title to the suit properties and possession follows title and the defendant has failed to prove his alleged title. So he had no occasion to disturb plaintiffs possession of the suit properties. The plaintiff is therefore, entitled to have a declaration of title and confirmation of possession and injunction with respect to peaceful possession of the suit properties against the defendants. The suit is also maintainable, issue nos.2 to 5 are thus disposed of with a remarks that there is no need for consideration of alternative prayer for recovery of possession in the aforesaid context.

Issue No.6:-

In the result the suit succeeds.

Court fees paid upon the plaint sufficient. Hence,

ORDERED

That the suit is decreed on contest with costs against defendant no. 1 Ka to Jha and 2 and without contest and without cost against the rest. Plaintiff's title with respect to Ka and Kha schedule is hereby declared and his possession thereof is hereby confirmed. The defendants are permanently restrained from disturbing possession of the plaintiff of the suit properties. The prayer for damage etc. is rejected under the present frame of the suit.”

ii. Thus, the appellants herein were permanently restrained from disturbing the peaceful possession of the respondents herein in so far as the suit property is concerned.

iii. The appellants herein being dissatisfied with the judgment and decree dated 20.06.1976 referred to above, challenged the same by filing Title Appeal No. 214 of 1976. The record does not reveal in what manner the Title Appeal came to be disposed of, however, according to the appellants, the same was disposed of by the Appellate Court vide order dated 10.06.1980.

iv. Sometime in the year 2017, i.e., after a period of almost 40 years, the respondents herein filed an Execution Case seeking to execute the decree dated 26.06.1976 referred to above on the ground that the appellants herein were disturbing & creating trouble in their peaceful enjoyment of the property and thereby alleged that the appellants have committed breach of the decree of permanent injunction. The same came to be registered as Title Execution Case No. 1 of 2017. The appellants were served with the summons of the suit execution case.

v. The application filed by the respondents herein (decree holders) which came to be registered as Execution Case No. 1 of 2017 concerning title Suit No. 25/1965 reads thus:

“IN THE COURT OF THE LD. CIVIL JUDGE SENIOR DIVISON AT ARAMBAGH, HOOGHLY

Executive Case No. 2017 concerning Title Suit No. 25/1965

Heirs of Late Choto Chandi Charan Ghosal and heirs of the said property 1 : Shri Ajit Kumar Ghosh