The decree-holder must prove that the judgment-debtor had an opportunity to obey the decree and willfully failed to obey it when seeking enforcement under Order XXI Rule 32 of the CPC.

ORDER :

1. Heard Sri P.V. Vidya Sagar, learned counsel for the revision-petitioner/decree-holder and learned Government Pleader for Arbitration appearing for the respondents/ judgment-debtors.

2. This revision-petition is directed against the Order, dated 18.02.2016 in O.E.P. No. 33 of 2005 in O.S. No. 323 of 1996 on the file of Principal Junior Civil Judge, Punganur.

3. The revision-petitioner is the decree-holder. He filed the execution petition under Order XXI Rule 32 of the Code of Civil Procedure, 1908 (for brevity “CPC”) against the respondents/ District Collector, Chittoor and the Mandal Revenue Officer, Peddapanjani Mandal of Chittoor District, who are judgment-debtors, alleging that they have violated the decree of prohibitory injunction issued by the First Appellate Court in Appeal Suit No. 27 of 2000, dated 30.08.2004.

4. The learned counsel for the revision-petitioner would submit that the Trial Court erroneously “Dismissed” the execution petition though, the decree of the First Appellate Court was “Confirmed” by the High Court of Judicature of Andhra Pradesh at Hyderabad, while dismissing the Second Appeal No. 36 of 2005 on 14.02.2014, filed by the respondents.

5. Learned Government Pleader for the respondents would submit that the learned Trial Court on facts categorically held that the decree-holder did not place any affidavit or oral evidence to prove the mode of violation of the decree by the judgment-debtors and there is no proof as to who violated the decree and therefore, refused to order the execution petition as requested by the decree-holder and in that view of the matter, there are no grounds to interfere with the finding of the learned Execution Court.

6. In the light of the above rival contentions of the revision petitioner/decree-holder and the respondents/judgment-debtors, the point that arises for consideration is:

“Whether the Trial Court committed any material irregularity in the Order, dated 18.02.2016 passed in O.E.P. No. 33 of 2005 in O.S. No. 323 of 1996 on the file of Principal Junior Civil Judge, Punganur?”

7. POINT:

It is an admitted fact that the revision-petitioner/decree-holder filed O.S. No. 323 of 1996 on the file of Principal Junior Civil Judge, Punganur for “Permanent Injunction” against the respondents/judgment-debtors/defendants and the said suit was “Dismissed” by the Trial Court vide Judgment, dated 03.07.2000. It is also an admitted fact that the revision-petitioner preferred First Appeal vide A.S. No. 27 of 2000 on the file of Senior Civil Judge, Punganur and it was “Allowed” vide Judgment and Decree, dated 30.08.2004. It is also an admitted fact that the respondents/judgment-debtors preferred Second Appeal vide S.A. No. 36 of 2005 on the file of High Court of Judicature of Andhra Pradesh at Hyderabad and the second appeal was “Dismissed” as devoid of merit, holding that the plaintiff i.e. the revision-petitioner herein is entitled to the relief of “Declaration” and “consequential Permanent Injunction” in respect of the plaint schedule property.

8. The revision-petitioner filed the above execution petition under Order XXI Rule 32 CPC seeking detention of the respondents/judgment-debtors in civil prison alleging violation of the decree of prohibitory injunction.

9. The High Court of Judicature of Andhra Pradesh at Hyderabad in Evuru Venkata Subbayya vs. Srishti Veerayya and Others, AIR 1969 A.P. 92 considered the ambit of Order XXI, Rule 32 of CPC with reference to application of Order XXI Rule 32 (1) and (5) of CPC and at Para- 5 held that “If a prohibitory injunction is disobeyed, the decree-holder will have a right to execute it and the word “injunction” in Order XXI Rule 32 (1) is covering prohibitory injunction.”

10. Therefore, Order XXI Rule 32 (1) CPC would apply to a decree for prohibitory injunction.

11. In this context, it is just and proper to refer “Order XXI Rule 32 (1) of CPC” which is extracted hereunder:

Rule 32. Decree for specific performance for restitution of conjugal ri