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S.P. DHANDAPANI versus PREMA

High Court of Madras

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S.P. Dhandapani v. Prema - Civil Revision Petition No.373 of 2003 and Criminal Revision Petition No. 529 of 2003 [2003] RD-TN 444 (20 June 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 20/06/2003

Coram

THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM Civil Revision Petition No.373 of 2003 and Criminal Revision Petition No. 529 of 2003 and

C.M.P.No.3858 of 2003

C.R.P.No.373 of 2003:

S.P. Dhandapani .. Petitioner -Vs-

Prema .. Respondent C.R.P.No.529 of 2003:

Prema .. Petitioner Vs.

S.P. Dhandapani .. Respondent Civil Revision Petitions against the orders dated 7.1.2003 and 18.2.2003 made in E.P.No.85 of 2001 in O.S.No.161 of 2000 on the file of the District Munsif Court, Sathyamangalam.

For Petitioner in

C.R.P.No.373 of 2003 : Mr.N. Manokaran

For Petitioner in

C.R.P.No.529 of 2003: Mr.K.S. Narayanan

For Respondent : ---

:COMMON ORDER



Prema filed a suit in O.S.No.161 of 1990 against one Dhandapani for permanent injunction restraining the defendant from running the electric motors and machineries in his ice factory, thereby causing nuisance by noise and vibration. The suit was dismissed after trial on 22.6 .1993. Prema, the plaintiff filed an appeal before the appellate Court in A.S.No.35 of 1993. Ultimately, after hearing the parties, the appellate Court was pleased to pass a decree by allowing the appeal restraining the defendant Dhandapani from running the electric motor in his factory from 6.00 p.m. to 6.00 a.m. by the judgment dated 22.1.1996. Since the decree was not obeyed, Prema, the plaintiff filed execution petition on 10.8.2001 in E.P.No.85 of 2001 praying for the order of arrest of the defendant and attachment of the property. After enquiry, the executing Court by the order dated 7.1.2003 held that the decree was disobeyed by the defendant/judgment-debtor. However, further opportunity was given to the defendant to obey the decree at least in the future and one month time was given till 7.2.2003. On 7.2 .2003, it was represented by the plaintiff/decree-holder that the judgment-debtor was still running the Ice Factory in deviation of the decree. However, no material was produced to establish the same. Therefore, the said petition in E.P.No.85 of 2001 was closed on 18.2.2003 giving the liberty to the decree-holder to file a similar application in the event of disobeying the decree by the judgment-debtor in future. Having aggrieved by the order dated 7.1.2003 giving the finding that the decree was disobeyed, Dhandapani/judgment-debtor filed C.R.P.No.373 of 2003 and Prema, the plaintiff filed C.R.P.No.529 of 2003 before this Court challenging the order refusing to send the judgment- debtor to prison. Since both the revision petitions are against the common impugned order, the common order is being passed by this Court. 2. According to the counsel for the petitioner Dhandapani in C.R.P. No.373 of 2003, once the decree-holder has shifted his residence, the decree passed against Dhandapani/judgment-debtor becomes non-est and as such, the order dated 7.1.2003 holding that the judgment-debtor has disobeyed the decree is wrong. He would cite the decisions in SURINDER KUMAR v. ISHWAR DAYAL (1996(II) M.L.J.(SC) 116), RAMASAMY GOUNDER v. SUGUNA (1999(III) M.L.J.441) and ARJUNA GOUNDER v. GOVINDARAJU REDDIAR (1990(2) L.W.98). 3. On the other hand, the learned counsel for the petitioner Prema in C.R.P.No.529 of 2003 would contend that having held that the order has been wilfully disobeyed by the judment-debtor, the trial Court should not have closed the execution petition and ought to have sent the judgment-debtor to the civil prison for having disobeyed the order or passed order of attachment of property.

4. I have carefully considered the rival contentions urged by the counsel for the parties and gone through the impugned order. 5. At the out set, it shall be stated that the judgments cited by the counsel for the petitioner Dhandapani in C.R.P.No.373 of 2003 would not apply to the present facts of the case.

6. 1990(2) L.W.98(supra) would refer to the aspect of the necessity of the opportunity to be given to obey the decree before giving a finding regarding disobedience of the decree. In this case, admittedly, the finding has been given by the executing Court after enquiry by referring to the materials placed by both parties before the said Court, that the petitioner Dhandapani has wilfully disobeyed the decree.

7. Similarly, the decision in 1999(III) M.L.J.441(supra) also would not apply to this case for the reason that this Court directed the executing Court to give opportunity to the judgment-debtor to obey the decree, in view of the fact that the judgment-debtor expressed his willingness to obey the decree and during the period of ten days, the Court shall supervise the action of the judgment-debtor whether he has in fact obeyed the decree by deputing Advocate Commissioner at his expenses and on the basis of the report of the Advocate Commissioner, the executing Court will decide.

8. This decision was rendered by this Court on facts in view of the willingness expressed by the judgment-debtor to obey the decree. But in this case, detailed enquiry has been conducted and there is a specific finding giving in the impugned order by giving valid reasoning that the judgment-debtor has disobeyed the decree wilfully passed by the court. 9. As a matter of fact, the petitioner/judgment-debtor went to the extent of contending before the executing Court that he has got a right to run the factory even beyond 6.00 p.m. in spite of the decree, since the plaintiff vacated the premises and as such, the decree is non-est. 10. When this was the attitude, the trial Court ought to have passed an order either for detention of the judgment-debtor in prison or for attachment of property. In short, it is to be stated, on the facts of the case, there is no necessity for giving one month time to the judgment-debtor in view of the stand taken by him.

11. The counsel for the petitioner Dhandapani in C.R.P.No.373 of 2003 would cite the authorities in V.S. ALWAR v. GURUSAMY THEVAR (A.I. R.1981 MADRAS 354) and 1996(II) M.L.J.(SC) 116 (supra) to show that the decree is unenforceable and the same cannot be executed.

12. It is settled law that it is fundamental that the executing Court cannot go behind the decree. As a matter of fact, the decree was passed by the appellate Court in the appeal filed by the plaintiff on 2 2.1.1996. Despite that, the decree was not obeyed by the defendant/ judgment-debtor. Ultimately, she filed an execution petition after about five years on 10.8.2001 praying for the attachment of the property and the order of arrest. 13. It is seen from the records that at the instance of the judgment-debtor, the execution petition was adjourned for thirty hearings spreading over the period between 2001 and 2003. The oral evidence of the judgment-debtor was recorded on 27.11.2002. On the basis of the oral and documentary evidence adduced by the parties, the executing Court by the order dated 7.1.2003 gave a categorical finding that the judgment-debtor had violated the decree wilfully by running the factory beyond the time specified in the decree. It has further held that the credence and intention of the judgment-debtor was not bona fide.

14. When such a finding has been given, in the absence of any willingness expressed by the judgment-debtor before the executing Court, the executing Court ought not to have given opportunity by giving one month time in the very same impugned order dated 7.1.2003.

15. It is to be stated that when the matter was taken up on 7.2.2003 after a month, it was specifically represented on behalf of the plaintiff that the judgment-debtor has been still running the factory disobeying the decree. When such a statement has been made, the executing Court must have sent the Advocate Commissioner to verify the same or it must have conducted separate enquiry regarding that and passed appropriate order. Without doing that, the executing Court merely closed the execution petition simply giving a liberty to the decreeholder to file a fresh application, if any disobedience continued. This procedure adopted by the executing Court, in my view, is clearly wrong.

16. Therefore, while sustaining the order dated 7.1.2003 regarding the finding given against the judgment-debtor with regard to wilful disobedience, the other portion of the order dated 7.1.2003 giving further opportunity to the judgment-debtor and the closing of the petition through the order dated 18.2.2003 are set aside. The matter is remanded to the executing Court to pass an order in the light of the finding given by the executing Court either by sending the judgmentdebtor to prison or by ordering attachment of property or by ordering both as contemplated under Order 21 Rule 32 C.P.C. The civil revision petitions are disposed of accordingly. Consequently, C.M.P.No.3858 of 200 3 is closed.

Index :Yes

Web Site:Yes

mam

To

1) The District Munsif, Sathyamangalam.

2) -do- the Principal District Judge, Erode.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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