Wilful disobedience is a necessary element to constitute an offence under Order 21 Rule 32 (1) of the Code of Civil Procedure.

B.L.Yadav, J.

1. By the present petition under Article 226 of the Constitution of India the orders dated 4-9-85 and 8-12-82 passed by Sri G. D. Dubey, the then District Judge, Ballia and the Vth Additional Munsif, Ballia, allowing the application under Order 21 Rule 32 of the Code of Civil Procedure, (for short the Code), directing the applicant petitioner to be detained in civil prison for a period of one month, as the petitioner has disobeyed the orders of the court by placing Palani on the land in dispute, in a suit for demolition of construction which was decreed against him.

2. The factul matrix of the case is that a decree for demolition of construction was obtained by respondent no. 2 Khedan and that decree was put in execution and the petitioner judgment debtor was directed to remove the construction, and was further restrained from interfering with the possession of decree holder, who alleged to have obtained the possession on the spot and the petitioner raised the Palani thereafter. Consequently he has violated the orders of the court within the meaning of Order 21 Rule 32 (1) of the Code. The trial court and the appellate court, under the impugned orders, directed the petitioner to be sent to civil prison for a period of one month. Against these orders the present petition has been filed.

Sri C. K Rai, learned counsel for the petitioner urged that it has been found by the courts below that the said Palani was not raised by the petitioner, but by one Khedaru, who has not been made a party to the petition, even though the decree holder, respondent no. 3 knew it from before and that he has not raised any Palani on the land in dispute after the execution of decree, nor he has wilfully disobeyed the decree or the order. It was further urged that under the impugned orders the petitioner was held to have disobeyed the decree and the order in favour of respondent no. 3, but the same cannot amount "to wilful disobedience", as was enjoined by sub-rule 1 of Rule 32 of Order 21 of the Code. Unless the "disobedience" has been proved to be "wilful", no imprisonment can be awarded.

3. Sri S. N. Singh, learned counsel appearing on behalf of respondent no. 3, on the other hand, urged that the courts below have held the petitioner to be guilty of disobedience of the decree and order and that itself was sufficient, and in any case the findings indicated that the petitioner has wilfully disobeyed the orders.

4. The relevant statutory provisions of Order 21 Rule 32 (1) is set out below : "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 (in the case of a decree for restitution of conjugal rights by the attachment of his property or, in case of a decree for the specific performance of contract, or for an injunction) by his detention in civil prison, or by the attachment of his property, or by both".

A bare reading of the aforesaid provision would indicate that in order to award punishment for disobedience of an injunction by directing the detention of petitioner in civil prison, it must be proved that the petitioner has "wilfully failed to obey" the decree or the order. It is to be noticed that the expression is not 'failed to obey', but 'wilfully failed to obey'.

5. The maxim "Actus Legitimi Non Recepiunt Modum" indicates that when the doing of anything has been indicated to be done in a particular manner sanctioned by law, then the thing cannot be done in a different way. As the punishment, against a person who has wilfully disobeyed the decree or order, is criminal, not only the act but also the intent must be present. It is for this purpose that the word 'wilful' has been employed. The other maxim "Actus Non Facit Reum Nisi Mens Sit Rea" means intent and act both must concur to constitute a crime, without inten