Case Note & Summary
The petitioner, original defendant in a suit, sought execution of an order dated 4-10-2004 passed in Appeal from Order No.831 of 2009, which recorded a statement by the plaintiff's counsel that the heirs of defendant No.1 would be given the same parking facility as defendant No.1. The petitioner alleged that the plaintiff did not abide by this statement, and therefore filed an application under Order 21 Rule 32 CPC for committing the plaintiff to civil prison. The Executing Court rejected the application as not tenable, holding that the order was not a decree and thus not executable. The High Court, relying on Section 36 CPC, held that execution provisions apply to orders as well. However, the Court noted that for invoking Order 21 Rule 32, the Executing Court must first determine whether there was willful disobedience. The impugned order was set aside and the matter remanded for fresh consideration. The Court kept all contentions open for the parties to agitate before the Executing Court.
Headnote
A) Civil Procedure - Execution of Orders - Section 36 CPC - The Executing Court erred in rejecting the application for execution on the ground that the order was not a decree, as Section 36 CPC provides that provisions relating to execution of decrees apply to execution of orders. The Court set aside the impugned order and remanded the matter for denovo consideration. (Paras 5-6)
B) Civil Procedure - Willful Disobedience - Order 21 Rule 32 CPC - For invoking Order 21 Rule 32 CPC for committing a person to civil prison, the Executing Court must first adjudicate whether there has been willful default or disobedience of the order. The Court directed the Executing Court to consider the application on the touchstone of Order 21 Rule 32 and sub-Rule 5. (Para 5)
Issue of Consideration
Whether an order (not a decree) is executable under Section 36 of the Code of Civil Procedure, 1908, and whether the Executing Court can reject an application for execution under Order 21 Rule 32 CPC on the ground that it is not a decree.
Final Decision
The impugned order dated 21-4-2010 is set aside. The matter is remanded back to the Executing Court for denovo consideration of Exhibit 21 in light of observations made. Rule made absolute with parties to bear their own costs.
Law Points
- Section 36 CPC applies execution provisions to orders
- Order 21 Rule 32 CPC requires willful disobedience for civil imprisonment
- Executing Court must adjudicate on merits
Case Details
2011 LawText (BOM) (12) 31
Writ Petition No.4849 of 2010
Mr. V.S. Gokhale for the Petitioner, Mr. Vaibhav Patankar for the Respondent
Dina Dora Sukhia (since deceased) through her LRs Dr. Mrs. Roshani Farukh through her POA holder Farokh Phiroze Chinoy
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Nature of Litigation
Writ petition challenging rejection of execution application under Order 21 Rule 32 CPC.
Remedy Sought
Petitioner sought execution of order dated 4-10-2004 and committal of plaintiff to civil prison for disobedience.
Filing Reason
Plaintiff failed to abide by statement recorded in order dated 4-10-2004 regarding parking facility.
Previous Decisions
Order dated 6-8-1999 in Special Civil Suit No.430 of 1995 restrained plaintiff from entering porch/verandah; Appeal from Order No.831 of 2009 disposed on 4-10-2004 with statement; Executing Court rejected Exhibit 21 on 21-4-2010.
Issues
Whether an order (not a decree) is executable under Section 36 CPC?
Whether the Executing Court can reject an execution application under Order 21 Rule 32 CPC without adjudicating on willful disobedience?
Submissions/Arguments
Petitioner argued that Section 36 CPC makes execution provisions applicable to orders, so the application was tenable.
Respondent presumably opposed, but not detailed in judgment.
Ratio Decidendi
Section 36 CPC provides that provisions relating to execution of decrees apply to execution of orders, so an order is executable. However, for invoking Order 21 Rule 32 CPC, the Executing Court must first determine whether there has been willful default or disobedience of the order.
Judgment Excerpts
It is posited in Section 36 that the provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of the Orders (including payment under an Order).
It is only after the Executing Court is satisfied that there is a willful default / disobedience of the said Order that the said provision under Order 21 Rule 32 could be invoked.
Procedural History
Special Civil Suit No.430 of 1995 filed; order dated 6-8-1999 restraining plaintiff; Appeal from Order No.831 of 2009 disposed on 4-10-2004 with statement; Petitioner filed Exhibit 21 in Special Darkhast No.119 of 2006 for execution; Executing Court rejected Exhibit 21 on 21-4-2010; Petitioner filed Writ Petition No.4849 of 2010.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 36, Order 21 Rule 32, Order 21 Rule 32(5)
