The twin conditions of the judgment debtor's opportunity to obey the decree and wilful failure to obey it, as laid down in Order XXI Rule 32 CPC, are mandatory and coexistent, and the exceptional powers under this rule should be exercised with great responsibility.

JUDGMENT

Anil Kshetarpal, J. (Oral) -

C.M.No.14282-CII-2022

Allowed as prayed for.

MAIN

1. The question which arises for consideration is 'Whether, while passing an order of delivery of possession in execution of an injunction decree, the Executing Court is required to record a finding that the Judgement Debtor has had an opportunity to obey the decree and he has wilfully failed to obey it?

2. Order XXI Rule 32 of the Code of Civil Procedure, 1908 is extracted as under:-

32. Decree for specific performance for restitution of conjugal rights, or for an injunction.-

(1)Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced 1[in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1)or sub-rule (2)has remained in force for 2[six months,] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 2[six months] from the date of the attachment no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decreeholder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree."

3. This revision petition arises from an order passed by the Executing Court directing delivery of possession of the property to the decree holder solely on the ground that the judgment debtor has been found in possession of the said property. Admittedly, there is no judgment and decree for delivery of possession in favour of the decree holder and against the judgment debtor. The operative part of the judgment passed by the Court on 02.11.2011 is extracted as under:-

'As a sequel to my findings on the foregoing issues, suit instituted by the plaintiff succeeds and the same is, hereby, decreed. A decree for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff and from taking forcible possession of the suit land is passed in favour of the plaintiff and against the defendants. Decree sheet be prepared accordingly. File be consigned to record room after due compliance."

4. The Executing court has drawn an inference of dispossession of the decree holder after the judgment and decree was passed on 02.11.2011 solely on the basis of a report of the Local Commissioner who has reported the possession of the judgment debtor upon the said property. On a careful reading of Order XXI Rule 32 CPC, it is evident that