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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar, J.
Sri Ramaraju – Appellant
Vs.
Indiramma – Respondents
W.P. No. 38945/2011 (GM-CPC)
Decided On: 26.03.2014
CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rule 32: [N. Kumar, J] Violation of decree of permanent injunction - The decree holder can file Execution Petition seeking arrest and detention in civil prison of the Judgment-Debtor - In case of repetition of disobedience, the Decree-holder can file another Execution Petition - According to Proviso to Article 136 of Limitation Act, 1963 the decree for permanent injunction is not subject to any period of limitation. A decree for injunction is a decree in perpetuity. Whenever a decree for permanent injunction is disobeyed, it is open to the decree holder to initiate execution proceedings and the Judgment-Debtor can be detained in civil prison. Article 135 of Limitation Act, 1963 is not applicable.
. LIMITATION ACT, 1963 - Article 135: [N. Kumar, J] Applicability - It is applicable only for enforcement of a decree for mandatory injunction and not to the enforcement of a decree for a prohibitory injunction
LIMITATION ACT, 1963 - Article 135: [N. Kumar, J] Applicability - Article 135 is applicable only for enforcement of a decree for mandatory injunction and not to the enforcement of a decree for a prohibitory injunction.
. LIMITATION ACT, 1963 - Article 136, Proviso: [N. Kumar, J] Limitation for enforcing a decree for perpetual (Prohibitory) injunction - Held, there is no period of limitation - The decree is a decree in perpetuity - Whenever, it is disobeyed, the decree-holder can initiate execution proceedings and the Judgment-Debtor can be detained in Civil Prison.
LIMITATION ACT, 1963 - Article 136, Proviso: [N. Kumar, J] Limitation for enforcing a decree for perpetual (Prohibitory) injunction - Held, There is no period of limitation. Decree is a decree in perpetuity. Whenever, it is disobeyed, the decree-holder can initiate execution proceedings and the Judgment-Debtor can be detained in Civil Prison.
SPECIFIC RELIEF ACT, 1963 - Section 38 & Civil Procedure Code, 1908, Order 21, Rule 32: [N. Kumar, J] Violation of decree of permanent injunction - Decree holder can file Execution Petition seeking arrest and detention in civil prison of the Judgment-Debtor. In case of repetition of disobedience, the Decree-holder can file another Execution Petition. According to Proviso to Article 136 of Limitation Act, 1963 the decree for permanent injunction is not subject to any period of limitation. A decree for injunction is a decree in perpetuity. Whenever a decree for permanent injunction is disobeyed, it is open to the decree holder to initiate execution proceedings and the Judgment-Debtor can be detained in civil prison. Article 135 of Limitation Act, 1963 is not applicable.
SPECIFIC RELIEF ACT, 1963 - Section 38: [N. Kumar, J] Decree of permanent injunction - A decree for injunction is a decree in perpetuity. According to Proviso to Article 136 of Limitation Act, 1963 the decree for permanent injunction is not subject to any period of limitation.
N. Kumar, J.
1. The judgment-debtor has preferred this writ petition challenging the order passed by the Executing Court directing his arrest and imprisonment for two months in civil prison for disobeying permanent injunction decree.
2. The decree in O.S. No. 172/1999 restraining the defendants including the petitioner herein from interfering with the plaintiff/respondent herein's possession and enjoyment of the schedule property was decreed after contest and it has attained finality. The defendants, in utter disregard of the decree, interfered with the plaintiffs possession over the schedule property as such, the plaintiff filed Ex. P. No. 15/2002 seeking arrest and detention of the petitioner herein in civil prison. After enquiry, the executing Court passed an order directing detention of the petitioner in civil prison for a period of two months. The said order was challenged in W.P. No. 41793/2003 but no interim stay was granted. By the time W.P. came up for hearing, two months detention period was over and therefore it was dismissed as having become infructuous.
3. In the meanwhile, the petitioner herein who is the 2nd defendant in O.S. 172/99 filed O.S. No. 234/2004 against the decree-holder for partition and separate possession of his 5/18th share in the schedule property. After contest O.S. 234/2004 was dismissed and regular appeal by the petitioner herein in R.A. No. 69/2007 was also dismissed. However, R.S.A. filed by him against dismissal of R.A. is pending consideration before this Court and no interim order is passed in his favour.
4. Alleging that the petitioner herein, after release from civil prison, once again disobeyed the decree for permanent injunction by interfering with his possession, the respondent herein filed yet another execution petition in Ex. No. 59/2009 seeking his arrest and detention in civil prison. The petitioner herein who is the second judgment-debtor, on receipt of notice, entered appearance and filed objections contending that a second execution petition is not maintainable, as R.S.A. preferred by him is pending and the decree holder was never in possession of the property.
5. Executing Court after considering the objections and also hearing the parties came to the conclusion that it is not open for the judgment-debtor to contend that the decree holder is not in possession in view of judgment and decree in O.S. No. 172/1999 where the decree holder is held to be in possession of the property. When the judgment-debtor contends that he is in possession, the interference alleged by the decree-holder stands established and therefore overruling all the objections, the Executing Court ordered for detention of judgment debtor/petitioner for two months in civil prison and warrant is issued for his arrest. Aggrieved by this, the judgment-debtor has preferred this writ petition.
6. This Court while entertaining the writ petition granted an order of stay of operation of the impugned order subject to deposit of Rs. 10,000/- by the petitioner herein before this Court and he has accordingly, deposited the said amount.
7. Learned Counsel for the petitioner/judgment-debtor assailing the impugned order contends that when once an execution petition was filed complaining of disobedience and an order of arrest was passed and the judgment debtor was detained in civil prison for two months, the decree for permanent injunction passed in O.S. 172/99 stood satisfied and therefore second execution petition for executing the same decree is not maintainable more so when the R.S.A. is pending consideration. The Executing Court ought not to have passed the impugned order. He asserts that it is the judgment-debtor who is in possession of the property and not the decree-holder as such, the question of disobedience on the part of judgment debtor does not arise.
8. Per contra, the learned Counsel for the decree-holder
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