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2024 Supreme(Online)(Bom) 932
BOMBAY HIGH COURT
BHARAT P. DESHPANDE, J
JAMES P. FARIA AND ANR. – Appellant
Versus
GOPALKRISHNA GOVIND SAVOIKAR (DEC.) AND ORS. – Respondent
CRA 1 / 2011
Civil imprisonment for disobedience of an injunction order should be a last resort, requiring clear evidence of violation, which was not established in this case.
Headnote:(A) Civil Procedure Code, 1908 - Order XXI Rule 32 - Execution proceedings - The Executing Court directed the Judgment Debtors to remove unauthorized repairs and imposed civil imprisonment for non-compliance. The court found that the repairs were either permitted or did not constitute disobedience of the injunction order. The court quashed the Executing Court's order, emphasizing that civil imprisonment should be a last resort. (Paras 2, 6, 8, 24, 31)
(B) Injunction - The court maintained that the injunction order only restrained repairs to the suit structure, and actions beyond this scope do not constitute disobedience. (Paras 19, 22)
Facts of the case:
The Applicants, as Judgment Debtors, challenged an order directing them to remove unauthorized repairs made to a structure used for business purposes, which was subject to an injunction order from a prior suit. (Paras 2, 3)
Findings of Court:
The court found that the repairs were either previously permitted or did not violate the injunction order, and the evidence presented was insufficient to justify civil imprisonment. (Paras 24, 31)
Issues: The main issues included whether the repairs constituted disobedience of the injunction order and the appropriateness of civil imprisonment for the Judgment Debtors. (Paras 10, 28)
Ratio Decidendi: The court ruled that civil imprisonment should be a last resort and that the burden of proof lies heavily on the Decree Holder to demonstrate disobedience. (Paras 24, 28)
Result: The impugned order is quashed and set aside; the revision application is allowed.
ORDER
1. Heard, Nitin Sardessai, Senior Advocate with Mr. Gaurang Panandikar, Mr. Siddharth Sardessai and Mr. Kabir Sabnis, learned Advocates for the Applicant and Mr. Parikshit Sawant learned Advocate for the Respondents.
2. The present revision is filed challenging the order passed by the Executing Court thereby directing the Applicant, first of all, to remove the structure within a period of 30 days and thereafter to be detained in civil imprisonment on payment of subsistence allowance.
3. The Applicants are the Judgement Debtors against whom a Judgment and Decree is passed and confirmed by the Higher Courts including this Court while deciding Second Appeal No. 24/1993. Though the Second Appeal was partly allowed wherein the eviction order of the Judgment Debtors is quashed and set aside, the injunction order passed by the Courts below was maintained.
4. The relevant portion of the Injunction Order passed by the Courts below and more particularly against the Judgment Debtors reads thus:
“Suit is partly decreed. The defendants, their servants, agents and or their family members are restrained by permanent injunction from carrying out any repairs or making any extension to the suit structure or from using the same for residential purpose.”
5. The second part of eviction was quashed and set aside in Second Appeal No. 24/1993 decided on 10/01/1997. Thus, the only relief that is available to the Decree Holders is the one granted with regard to Injunction and as quoted above.
6. The Judgement Debtors accordingly filed an execution application before the learned Civil Court vide Execution Application No. 5/2002 wherein it has been claimed that the Judgement Debtors in spite of the Decree, replaced local tiles of the structure with Mangalore tiles thereby substituting the existing roof. The Decree Holder further claimed that the Judgement Debtors further converted the Baguela into Mangalore Tiles structure at the rear side and raised a wall of bricks on the western side. The Judgement Debtors removed the barbed wire fencing around the suit structure, replaced the door on the western side, and constructed a structure for a water meter on the northern side in the Baguela which was converted into a Mangalore tile roof. The Judgement Debtors further replaced wooden props. All these repairs were done without permission and authority from the Decree Holders and in violation of the Decree.
7. The Judgement Debtors filed reply to the execution proceedings and thereafter, inquiry was conducted. The Decree Holder as well Judgement Debtors led evidence. The learned Executing Court vide the impugned order dated 02.03.2009 directed the Judgement Debtors to remove mud bricks piled up one over the other upto one cubic and near the Western Baguela, to remove the Pedestal or Meter structure and put pot tiles on the roof of the main structure by removing existing Mangalore Tiles but excluding Mangalore Tiles on the Veranda and the rear projection within 30 days. The Judgement Debtor No. 1 was ordered to be detained in civil imprisonment after completion of 30 days from the date of order and on payment of subsistence allowance.
8. The Applicant/ Judgement Debtors challenged such an order by filing Misc. Civil Appeal No.17/2009 before the learned District Court which was allowed vide Judgement dated 21.08.2009. However, the Respondent/Decree Holder challenged such order passed by the District Court by filing a Writ Petition No. 688/2009 which was decided by this Court on 15.07.2010. This Court observed that since there is no provision of filing of appeal against the order passed by the Executing Court, more specifically, under Order XXI Rule 32 of the Civil Procedure Code, 1908 (C.P.C. for short), quashed and set aside the order passed by the District Court in MCA No. 17/2009. As a result, the order passed by the Executing Court on 02.03.2009 was restored and became operative.
Accordingly, the present revision is filed challenging the order passed by the Exec
