The executing Court cannot order detention of a judgement-debtor without proper material evidence of wilful disobedience of a decree for injunction as required by R. 32 (1) of O. XXI of the Code.

N. VENKATACHALA, J.

( 1 ) BY consent of learned Counsel, this revision petition is treated as having been posted for hearing and I have heard them.

( 2 ) IN this revision petition under S. 115 of the Code of Civil Procedure, 1908 (for short 'the Code'), the scope and ambit of R. 32 (1) of O. XXI of the Code, arise for decision.

( 3 ) SHIVAMURTHY Mahalingappa Kuchanaur, the petitioner here, was the defendant in O. S. No. 120/84, on the file of the Court of Munsiff at Banahatti, while the Dannammadevi Cycle Mart represented by its owner Basetteppa Shivarudrappa Sanakal, the respondent here, was the plaintiff therein. That suit had been instituted to restrain the defendant by means of perpetual injunction, from interfering with the plaintiff's alleged possession and enjoyment of a shop premises, C. T. S. No. 1391, situated at Rabakavi and an ex parte decree therein had come to be made on 30-4-1984 accordingly. The plaintiff, as decree-holder, sought to execute that decree against the defendant-judgement-debtor in Execution Case No. 14/85 filed in the same Court. In that execution case, the decree-holder filed an interlocutory application, I. A. I. , under R. 32 (1) of O. XXI of the Code and prayed for enforcement of that decree against the defendant by ordering his detention in the civil prison. In that application, the decree-holder had alleged, inter alia, that on the night between 16th and 17th of Mar. , 1985 at about 3-00 or 4-00 a. m. , the judgement-debtor, his son-Sangappa and his family members, with the help of "goondas" engaged by the judgement-debtor, broke open the lock put upon the door of the said shop premises; forced their entry into that premises; physically prevented the decree-holder from entering into that premises; and, thus, disobeyed the said decree for injunction rendering themselves liable for detention in the civil prison. The defendant, who appeared in that case through his Counsel, even before notice of the case had been served upon him, filed a statement of objections to the said interlocutory application urging, inter alia, that he had neither knowledge of the ex parte decree nor an opportunity to disobey it; that he was not the owner of the said shop premises respecting which injunction had been obtained against him; that the status of landlord attributed to him by the decree-holder in his suit was without any basis; that he being an aged person, was physically incapable of forcefully evicting the decree-holder from the shop premises; and that the detention order sought against him could not be obtained under R. 32 (1) of O. XXI of the Code without service of a prior notice upon him in that regard.

( 4 ) ON the above rival contentions of the parties, the main point raised by the executing Court for its decision, was whether the judgement-debtor against whom a decree for injunction had been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it as would require the executing Court to enforce that decree by ordering his detention in the civil prison. That point was answered in the affirmative and against the judgement-debtor by the executing Court merely on the basis of rival arguments heard by it and not on the basis of any material placed before it by the parties. Consequently, it directed that the judgement-debtor shall be kept in civil prison for one month and made an order accordingly. It is the validity of this order that has been challenged by the judgement-debtor in this revision petition.

( 5 ) SHRI S. Vijayshankar, learned Counsel for the petitioner (judgement-debtor), contended that the executing Court had made the order under challenge, without a proper understanding and appreciation of the scope and ambit of sub-R. (1) of R. 32 of O. XXI of the Code. He further contended that the conclusion reached by the executing Court that the judgement-debtor had disobeyed the decree, was based merely on a surmise and not on any acceptable material and that being so, th

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