Imprisonment Of Judgment Debtor Drastic Step, Court Must Ascertain If Decree Was Wilfully Disobeyed : Supreme Court

The Supreme Court through its recent order, observed that imprisonment of a judgment debtor is a drastic step and to exercise such power, the Court must ensure that the judgment debtor wilfully disobeyed its order.

“Imprisonment of a judgment-debtor is no doubt a drastic step and would prevent him from moving anywhere he likes, but once it is proved that he had wilfully and with impunity disobeyed an order of injunction, the court owes it to itself to make the judgment-debtor realise that it does not pay to defy a decree of a court. Failure to exercise this power in appropriate cases might verily undermine the respect for judicial institutions in the eyes of litigants.,” observed the Bench of Justices J.B. Pardiwala and R. Mahadevan.

Reliance was placed on Order 21, Rule 32 of the CPC and the concerned portion reads as:

“Where the party against whom a decree ................ 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 an injunction by his detention in the civil prison…”

The court's power under Order 21, Rule 32 is no more than a procedural aid to the harried decree-holder, the Court said. However, before passing an order for detention, the Court must be satisfied that the judgment-debtor, in spite of having an opportunity to obey the decree, has wilfully disobeyed it. It added that the absence of such a finding is a serious infirmity vitiating the order.

"decree for injunction passed against a party could be enforced by his detention in a civil prison, if he has wilfully failed to obey such decree despite having had an opportunity of obeying it

But, the Court should not, according to the same sub-rule, make an order for detention of the person unless it is satisfied that that person has had an Opportunity of obeying the decree and yet has wilfully disobeyed it."

Elaborating, the Court said that the person seeking execution of the decree for an injunction must be able to prove that the concerned person was not only bound but also aware of the decree. Further, the person had an opportunity of obeying such decree but has wilfully disobeyed the same.

“Thus, the onus of placing materials before the executing Court for enabling it to record a finding that the person against whom the order of detention is sought, has had an opportunity of obeying the decree for injunction, but has wilfully disobeyed it, lies on the person seeking such order of detention, lest the person seeking deprivation of the liberty of another cannot do so without fully satisfying the Court about its need.,” the Court explained.

In brief, the original plaintiffs (respondents' legal heirs) had filed a suit against the present appellants for recovery of possession and for a permanent injunction. The same suit was decreed in the plaintiff's favour. Pertinently, after almost 40 years, the respondents filed an execution case to execute this decree on the ground that the appellants herein were disturbing their peaceful enjoyment of the property.

Since the appellants did not appear, the executing court fixed the matter for ex parte disposal. It also rejected the written objections filed by the appellant. Consequently, an order was passed that the appellants shall be arrested and detained in civil prison for 30 days and their property be attached as per the law. Challenging this, the appellants approached the High Court. However, the High Court rejected the plea and observed that no jurisdictional error was committed by the executing court in passing the impugned order. Thus, the present case.

After perusing the submissions and the relevant provisions, the Court observed that an application seeking detention of the judgment-debtor must state or attach an affidavit mentioning the grounds for the same. Order 21, Rule 11-A of the CPC stipulates the same.

“Stating of grounds or filing of affidavit is essential. The provision is thus mandatory and unless it is complied with, no arrest or detention of the judgment-debtor can be ordered. But if the requisite affidavit is not filed by the decree-holder, the court should afford an opportunity to him to file such affidavit. It is well settled that a decree of permanent injunction is executable with the aid of the provisions contained in Order XXI Rule 32 of the Code referred to above, and any act in violation or breach of decree of permanent injunction is a continuing disobedience entailing penal consequences.,” the Court said and placed its reliance on several cases discussing the scope of Order 21, Rule 32.

Addressing the fact that the execution case was filed 40 years after the decree, the Court made it clear that the same can be enforced when the judgment debtor tries to disturb the peaceful possession. To support this, reference was made to the proviso to Section 136 of the Limitation Act. Therein, it is stated that the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.

“Each breach of injunction is independent and actionable in law making the judgment-debtor answerable. Where there are successive breaches of decree, the judgment-debtor can be dealt with on every such breach and the doctrine of res judicata has no application. The court is expected to take strict view and stern action.,” the Court added.

However, as far as the procedure is concerned, the Court observed that the detention order was passed even when there was no material placed ensuring wilful disobedience by the appellants.

“The executing court proceeded merely on the basis of the assertions made by the respondents that the appellants herein are trying to interfere with their peaceful possession of the suit property without any further inquiry into the matter.,” the Court said.

Before parting, the Court also expressed disappointment with the impugned order passed by the High Court. It may be mentioned that the appellants had approached the High Court under Article 227 of the Constitution. The same confers supervisory jurisdiction on the High Court over all courts and tribunals to which it exercises jurisdiction. The Court agreed that before invoking its power under Article 227, the High Court must ascertain if the order suffers from any jurisdictional error.

However, at the same time, the High Court should not strictly go by the term “jurisdictional error”. Issues like ignoring relevant material, relying on irrelevant material or failing to observe a requirement of procedural fairness would also fall under jurisdictional error.

“We are a bit disappointed with the manner in which the High Court dealt with the present litigation, more particularly while deciding the revision application filed by the appellants herein against the order passed by the executing court. All that the High Court has said in one line is that it did not find any jurisdictional error in the order passed by the executing court ordering arrest, detention in a civil prison and attachment of the property of the appellants. We fail to understand, why the High Court was not able to see the gross error in the order passed by the executing court, be it called an error of law or a jurisdictional error…”

“If, therefore, an error, be it an error of fact or of law, is such that the erroneous decision has resulted in the subordinate Court or tribunal exercising jurisdiction, not vested in it by law, or in its having failed to exercise jurisdiction, vested in it by law, that will come within the scope of Section 115 of the Code or, for the matter of that, of Article 227 of the Constitution, as the case may be.”

In the end, the Court also criticised the Trial Court for not giving an opportunity of hearing to the appellants. It said that the court should have been a little more considerate while rejecting the written objections. Further, it could have given one more opportunity to the appellants before passing the detention order.

“This aspect unfortunately has been overlooked even by the High Court while affirming the order passed by the executing court. The High Court itself could have remanded the matter to the executing court with a view to give an opportunity of hearing to the appellants herein. The supervisory jurisdiction vested in the High Court under Article 227 of the Constitution is meant to take care of such situations like the one on hand.,” it added.

In view of this factual background, the Court had set aside the impugned orders. While doing so, the Court also made it clear that it shall be open for the respondents herein (decree-holders) to file a fresh application in case of any interference by the appellants. Apart from this, the Court also directed the Registry to circulate this judgment to all the High Courts. Further, the High Courts were required to do the same in their respective District Courts.

Appearances:

Petitioners: Mr. Rabin Majumder, Adv. Mr. Joydeep Mukherjee, AOR

Respondents: Mrs. Lalita Kaushik, AOR

Case Name: Bhudev Mallick Alias Bhudeb Mallick Vs Ranajit Ghoshal., CIVIL APPEAL NO.2248 OF 2025

Citation : 2025 LiveLaw (SC) 184

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