C O M M O N J U D G M E N T

These two revisions are between the same parties and arise out of E.P.No.104 of 2002, on the file of the Junior Civil Judge, Nalgonda.

2. The 1st petitioner is the father of petitioners 2, 3 and 4. The 1st respondent is the brother of the 1st petitioner, and respondents 2 and 3 are the sons of the 1st respondent. Respondents filed O.S.No.268 of 1997 in the Court of Junior Civil Judge, Nalgonda, against the petitioners for perpetual injunction, in respect of the suit schedule property. The suit was decreed ex parte on 02-04-1999. The respondents filed E.P.No.104 of 2002, under order 22 Rule 32 C.P.C., alleging that despite the decree for perpetual injunction, the petitioners attempted to interfere with their possession over the suit schedule-property.

3. Petitioners 1 and 2 were set ex parte on 16-09-2003, and petitioners 3 and 4, on 22-04-2003. Thereafter, petitioners filed applications to set aside the orders dated 25-06-2002 and 16-09-2003, with application to condone the delay. On 07-08-2006 the Executing Court dismissed the applications, and issued warrant of arrest against the petitioners. On 18-09-2006 the 1st petitioner was produced in the Court, on execution of an arrest warrant. Thereupon, the Court sentenced him to undergo civil imprisonment for a period of one month. These two revisions are filed assailing the orders dated 07-08-2006 and 18-09-2006, passed by the Executing Court.

4. Sri J. Prabhakar, learned counsel for the petitioners, submits that the Executing Court did not follow Rule 32 of Order 21 C.P.C., in its true spirit. He contends that arrest was ordered, without there being a finding to the effect that there was any wilful and deliberate attempt on the part of the petitioners, to flout the decree of perpetual injunction. He submits that the Executing Court did not require the respondents to discharge their burden, to prove the ingredients of Rule 32 of Order 21 C.P.C.

5. Sri M.Venkat Ram Reddy, learned counsel for the respondents, on the other hand, submits that even after receiving notices in the E.P., the petitioners did not enter appearance, and that the Court was left with no alternative, except to order their arrest and other relevant steps.

6. The petitioners do not dispute that the decree for perpetual injunction passed against them has become final and is binding upon them. They, however contend that they never attempted to interfere with the possession of the respondents over the suit schedule property, and complain that the Executing Court directed their arrest without recording any finding, that there was a deliberate and wilful attempt, on the part of the petitioners, to violate the decree. Therefore, the only question that needs to be examined is, as to whether the Executing Court ensured compliance with the requirements under Rule 32 of Order 21 C.P.C., before it directed the arrest of the petitioners. Rule 32 (1) of Order 21 is relevant in this regard. It reads as under:

O.21 R.32 (1): Decree for specific performance for restitution of conjugal rights, or for an injunction: Where the party against whom a decee 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 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 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”.

7. From a perusal of the Rule, it is evident that mere existence of a decree for perpetual injunction, or for that matter, a mere complaint, by the decree-holder against the judgment-debtor, is not sufficient to direct the detention of the judgment-debtor in civil prison. Two facts are necessary to be proved by the decreeholder: In a way, they are two facets

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