ORDER :

PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order dated 06.08.2022 passed in E.P.No.1191 of 2013, on the file of the IX Assistant City Civil Court, Chennai.

The Civil Revision Petition is filed against the order passed by the Court below directing the arrest of the petitioner/judgment debtor for wilful disobedience of the decree for injunction dated 17.10.1995 passed in O.S.No.9974 of 1992.

2. Factual background of the facts:

One Jayalakshmi Ammal under whom the respondents are claiming title filed a suit in O.S.No.9974 of 1992 on the file of the City Civil Court, Chennai, seeking a decree for permanent injunction restraining the petitioner herein/defendant therein from any manner using the private road, owned by said Jayalakshmi, comprised in R.S.No.3958/2, Bishop Gardens, Madras – 28 and morefully described in red washed portion in the plan annexed with the plan and also for mandatory injunction directing the petitioner herein to remove the iron gate put up by him in the eastern compound wall of the said Jayalakshmi marked in Yellow Colour in the plan annexed herewith and to restore the compound wall to its original position. The said suit was decreed ex-parte on 17.10.1995. The plaintiff/decree holder viz., Jayalakshmi Ammal passed away on 27.08.2005. Now, the respondents herein claimed that they have inherited and acquired the subject matter of the property in O.S.No.9974 of 1992 and filed an execution petition alleging violation of the injunction decree by the petitioner. The petitioner herein filed a counter and resisted the execution petition on various grounds inter alia contending that he did not violate the decree. The executing Court on consideration of the oral and documentary evidence let in by the parties came to the conclusion that the petitioner wilfully violated the decree for injunction and consequently ordered his arrest and detention in Civil prison. Aggrieved by the said order, the petitioner has come by way of this revision.

3. Mr.Om Prakash, learned Senior counsel appearing for the petitioner submitted that as per the decree violation of which is alleged by the respondents, the survey number of the suit properties is R.S.No.3958/2. However, later on, the respondents themselves found the correct survey number of the private passage in respect of which the suit was filed found to be R.S.No.3958/3 and they filed an application for amendment of the decree in E.A.No.1776 of 2017. Even though the said application was allowed by the executing Court and confirmed by the High Court, the respondents failed to take any steps to carryout the amendment and even as on today the survey number mentioned in the decree remains as 3958/2. In view of the discrepancy in the survey number, the act of violation alleged against the petitioner cannot be pressed into service.

4. The learned senior counsel further submitted that in the execution petition filed by the respondents there was no mention of alleged violation. No affidavit was filed along with execution petition as mandated by Order XXI Rule 11A of CPC. The learned senior counsel further submitted that the respondents filed another suit in O.S.No.1578 of 2014 against the petitioner in respect of the same cause of action and that itself justified the stand of the petitioner that there was no executable decree. The learned senior counsel also submitted that the decree was passed as early as 1995 and for nearly 17 years, there had been no allegation of violation and that itself shows there is no wilful violation on the part of the petitioner.

5. The learned senior counsel also submitted that without prejudice to his contention on the merits of the case, the petitioner filed affidavits dated 01.09.2022 and 02.12.2022, whereunder, he tendered his unconditional apology and undertook to obey the judgment decree dated 17.10.1995 passed in O.S.No.9974 of 1992. He also undertook to remove all the s