Case Note & Summary
The instant writ petition under Articles 226 and 227 of the Constitution of India impugned an order dated 07.02.2023 passed by the Principal Civil Judge & JMFC, Chikkodi in Execution Petition No.24/2019. The execution proceedings arose from a decree for perpetual injunction granted in R.A. No.45/2004 by the Civil Judge (Senior Division), Chikkodi. The decree restrained the petitioners – the Gram Panchayat of Karoshi and its functionaries – from putting up any construction and from causing obstruction to the peaceful possession and enjoyment of the decree holder (first respondent) over agricultural land situated at Karoshi village bearing R.S. No.1/2, measuring 15 guntas, bounded by government buildings and roads. Despite the finality of the decree, the first respondent alleged that the petitioners were interfering with his possession and attempting to raise illegal construction. Consequently, he filed Execution Petition No.24/2019 and moved an application under Order 21 Rule 32(1) read with Section 151 of the Code of Civil Procedure, 1908, seeking issuance of a warrant of arrest against the judgment debtors and their committal to civil prison. The executing court, noting the absence of the petitioners’ representation, allowed the petition and ordered the arrest of the judgment debtors. Aggrieved, the petitioners (the Gram Panchayat officials) approached the High Court, contending that they had not violated the decree and, crucially, that the impugned order was passed without affording them any opportunity of being heard. During the hearing of the writ petition, counsel for the first respondent (decree holder) submitted that he would have no objection to the setting aside of the arrest order provided that the petitioners strictly abide by the decree and desist from interfering with the peaceful possession of the suit property. The petitioners, through their counsel, expressed their agreement to comply with the decree. In view of this consensus, the High Court did not delve into the merits of the alleged disobedience but proceeded to dispose of the matter by consent. The Court held that since the decree holder was willing to withdraw the arrest order on condition of compliance and the judgment debtors undertook to abide by the decree, the impugned order deserved to be set aside. Accordingly, the order dated 07.02.2023 passed in E.P. No.24/2019 was quashed. The Court further directed that the petitioners shall abide by the decree passed in R.A. No.45/2004 in letter and spirit. It was made clear that if the petitioners act in contravention of the said decree, the first respondent would be at liberty to initiate fresh proceedings against them in accordance with law. The writ petition was thus allowed in the above terms, with no order as to costs. This outcome underscores the procedural requirement of hearing before passing coercive orders in execution proceedings and the binding nature of injunction decrees on public bodies.
Headnote
A) Civil Procedure - Execution of Decree - Order XXI Rule 32(1) and Section 151 Code of Civil Procedure, 1908 - Violation of Natural Justice - The executing court directed arrest of judgment debtors for alleged disobedience of injunction decree without affording them an opportunity of hearing; on challenge, the decree holder expressed no objection to setting aside the arrest order if the judgment debtors comply with the decree, and the judgment debtors agreed to abide. Held, the impugned order of arrest is set aside, and the judgment debtors are directed to abide by the decree; non-compliance would expose them to fresh action in accordance with law. (Paras 1-5)
Issue of Consideration
Whether the executing court's order directing arrest of judgment debtors under Order 21 Rule 32(1) CPC without affording them an opportunity of hearing was sustainable.
Final Decision
The impugned order dated 07.02.2023 passed in E.P. No.24/2019 was set aside. The petitioners were directed to abide by the decree in R.A. No.45/2004. If they act in contravention, respondent No.1 is at liberty to initiate appropriate action in accordance with law.
Law Points
- execution of decree
- Order 21 Rule 32 CPC
- opportunity of hearing
- setting aside ex-parte order
- consent order
- perpetual injunction
