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2014 Supreme(AP) 1334
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
S.V. Bhatt, J.
Kilaru Ramakrishna - Appellants
Vs.
Palla Prabhudas - Respondent
C.R.P. No. 1466 of 2014
Decided On: 19.11.2014
For Appellant/Petitioner/Plaintiff: C. Raghu
For Respondents/Defendant: V. Hari Haran
Headnote:
Civil Procedure Code, 1908 – Order 21 – Rule 32 – Section 144 – Disobedience of perpetual injunction decree – Ordered for arrest and detention – Revision petition – Revision petitioner in civil prison for a period of two months for violation of perpetual injunction decree and judgment in O.S – Averments on disobedience are that the revision petitioner filed for perpetual injunction in the Court of revision petitioner filed for appointment of Advocate Commissioner to measure all the adjoining survey numbers of survey of survey numbers through commission is requested to fix the boundaries of learned Senior Civil Judge through order dated allowed petition filed by revision petitioner for appointment of Advocate Commissioner – Learned Senior Civil Judge specifically while accepting the prayer for commission directed the Advocate – Background complaint of respondents is that the Advocate-Commissioner and judgment debtor bulldozed their way into plaint schedule with help of Urban Police and have broken the southern fence of E.P. schedule property and removed white poles planted all along the suit schedule property on southern boundary and put new poles with different shades. The said act of forcible trespass etc., amounts to criminal trespass against the perpetual injunction granted and restriction imposed by learned Senior Civil Judge evidence breach of injunction decree and pulling down the poles – Held, Considering the mode and manner of executing of decrees for perpetual injunction, it is clear the Parliament has enabled the executing Court to undertake appropriate acts in addition to other consequences provided by sub-rules – In case on hand a decree has been passed in of the petitioner and for implementation and execution of the decree an execution petition is pending before the executing Court – Order of Civil Procedure Code lays down an elaborate system of implementation of the decrees – Order 21 not only gives rights to decree holders alone but rights are available to judgment debtors and third parties as well. There are various can be taken while resisting execution of a decree by the judgment debtors and if by way of a shortcut, without deciding the execution petition, police is asked to implement the decree, the judgment debtor would certainly lose the rights of resisting the decree on the basis of available to such judgment debtor under Order – An execution petition under Order 21 which is pending before Executing Court, at no point of time the civil Courts can refer the matter of implementation of the decree, to the police. If this course is adopted it will be the negation of the rights of judgment debtor available under Order 21. Unless and until the execution petition is finally heard there cannot be any question of sending it to the police for implementation – Petition dismissed.
S.V. Bhatt, J.
1. The judgment debtor in E.P. No. 26 of 2013 in O.S. No. 116 of 2011 in the Court of the Principal Junior Civil Judge, Khammam, is the revision petitioner.
2. Through the impugned order, the executing Court ordered for arrest and detention of the revision petitioner in civil prison for a period of two months for violation of the perpetual injunction decree and judgment in O.S. No. 116 of 2011.
3. The execution petition is taken out under Order XXI Rule 32 of C.P.C.
4. The respondents filed O.S. No. 116 of 2011 in the Court of the Principal Junior Civil Judge at Khammam for the relief of perpetual injunction against the revision petitioner herein. The suit schedule is as follows:
A schedule property
Agrl. Dry land to an extent of about Acs. 1-12 gts in Sy. No. 59 of Dhamslapuram Village, Khammam Urban Mandal, Khammam District is situate within the following boundaries:
East: Land of Kurapati Narayana
West: Land of K.P. Dayamani (D.Hr. No. 2/Plaintiff No. 2 B schedule property & Konakanchi Rambabu.
North: Land of Jabbisetty Papa Rao
South: Land of Maduri Srinivasa Rao
B schedule property
Agrl. Dry land to an extent of about Acs. 0-20 gts in Sy. No. 59 of Dhamslapuram Village, Khammam Urban Mandal, Khammam District is situate within the following boundaries:
East: A schedule property of 1st plaintiff
West: Land of Konakanchi Rambabu
North: A schedule property of 1st plaintiff
South: Land of Maduri Srinivasa Rao
5. Through the judgment and decree dated 29.06.2012, the suit was decreed as prayed for.
6. On 06.02.2013, the respondents filed the present EP complaining disobedience of the perpetual injunction decree dated 29.06.2012 in O.S. No. 116 of 2011 by the revision petitioner.
7. The averments on disobedience are that the revision petitioner filed O.S. No. 166 of 2012 for perpetual injunction in the Court of Senior Civil Judge, Khammam. The revision petitioner filed I.A. No. 1420 of 2012 for appointment of Advocate Commissioner to measure all the adjoining survey numbers of Sy. No. 59. The survey of neighbouring survey numbers through commission is requested to fix the boundaries of Sy. No. 55 of an extent of Acs. 36-00. The learned Senior Civil Judge through order dated 17.12.2012 allowed the petition filed by the revision petitioner for appointment of Advocate Commissioner. The learned Senior Civil Judge specifically while accepting the prayer for commission directed the Advocate Commissioner as follows:
The Advocate Commissioner to take the assistance of Director, Survey and Land Records and take the assistance of revenue people to fix boundaries to the petition schedule property (item 1) which is Acs. 36-00 in Sy. No. 55. He is further directed not to measure the respondents schedule mentioned in the petition because there were already decrees and judgments in favour of the respondents.
8. It is in this background the complaint of respondents is that the Advocate-Commissioner and judgment debtor bulldozed their way into plaint schedule in O.S. No. 116 of 2011 with the help of Khammam Urban Police and have broken the southern fence of E.P. schedule property and removed white coloured poles planted all along the suit schedule property on southern boundary and put new poles with different shades. The said act of forcible trespass etc., amounts to criminal trespass against the perpetual injunction granted in O.S. No. 116 of 2011 and the restriction imposed by the learned Senior Civil Judge in I.A. No. 1420 of 2012. To evidence breach of injunction decree and pulling down the poles etc., the respondents filed photographs of demolished poles etc. Hence, the prayer for executing the decree in O.S. No. 116 of 2011 and committing the revision petitioner to civil prison under Order XXI Rule 32 of C.P.C.
9. The revision petitioner filed counter denying the material averments on violation of perpetual injunction in O.S. No. 116 of 2011. The revision petitioner admits filing of O.S. No. 166 of 2012 in the Court of Senior Civil Judge for
