High Courts interference with the order passed required holding the order clear error of jurisdiction.

The plaintiff decree-holder has filed this revision against the dismissal, of his Execution Petition No. 1916 of 1991 in O.S.No.4686 of 1990 on the file of X Assistant City Civil Court, Madras, on 12. 1993. E.P. No.1916 of 1991 was filed by the plaintiff for arrest of the judgment- debtor/ respondent for detention in the civil prison and for attachment of her movables. The said execution petition has been filed under O.21, Rule 32(1), C.P.C. for executing the decree of injunction obtained in O.S. No.4686 of 1990, dated 23. 1991, restraining the respondent from interfering with the possession by the petitioner of the property in question. The court below has dismissed the execution petition on two grounds, viz., (1) the respondent is a woman and she cannot be arrested; (2) it is not stated by the petitioner specifically that the respondent has acted contrary to the said decree.

2. Learned counsel for the petitioner submits that both these two alleged reasons cannot be sustained at all. According to him, only in the case of money decree, Sec.56, C.P.C. prohibits the arrest of women judgment- debtors. Secondly, he points out that apart from stating in the affidavit filed in support of the execution petition, the petitioner has also given evidence, showing how the respondent has violated the decree.

3. Learned counsel for the respondent on the other hand submits that the remedy under O.21, Rule 32 is a discretionary remedy and there is no reason for interfering with the exercise of that discretion by the court below.

4. I have considered the rival submissions regarding the above said two reasonings of the court below. Sec.56, Civil Procedure Code is clear that there is prohibition against arrest of a women judgment-debtor only in the case of money decree. The said section runs as follows:

“Notwithstanding anything in this part, the court shall not order the arrest or detention in the civil prison of a women in execution of a decree for the payment of money.” But, as already pointed out this is not a case of money decree; it is only an Injunction decree and the only way of executing the decree is as is mentioned in O.21, Rule 32, C.P.C.

5. Secondly, regarding the above said second reasoning of the court below, the averments in the affidavit of the execution petition is as follows:

"Subsequent to the decree passed by this Hon’ble Court, the judgment-debtor expected to obey the decree dated 23. 1991, but he has wilfully failed to do so in utter disobedience and disregard to the decree that is passed by this Court, the judgment-debtor continues to enter upon the suit property with a view to put up a thatched hut. The judgment-debtor has no right in law to do so.....The judgment-debtor has been virtually entering upon the suit property everyday and the complaints given in this regard to the Inspector, F-2 Police Station has not been of any use as the judgment-debtor has brought political pressure to solve any remedial measures to be taken by the Inspector, F-2 Police Station to give effect to the decree passed by this Honourable Court." (Emphasis supplied)

Apart from this averment in the supporting affidavit, he has deposed in his chief examination thus:

In the cross-examination also, there is only a reiteration of what is said in the chief, thus:

Therefore, what is observed by the court below is factually wrong. In the above circumstances, the court below has certainly committed error of jurisdiction and there is very good reason for setting aside the order of the court below under Sec.115, C.P.C. 6. To fortify the above conclusion it may also be noted that a Commissioner was appointed in the execution proceeding to note down the encroachment of the respondent and after inspection, the Commissioner in his report, after initially saying that he was appointed to "note down the present possession and encroachment if any, by the respondent, "finally concludes thus, "hence there appears an encroachment to the extent of 9 feet e