P L D 1964 Dace 661 (PLP)

The defendant No. 1, the landlord, started Certificate pro ceeding against the defaulting tenants and auction purchased the subordinate interest on 26th of February 1955. On 12th of December 1955, the respondents Nos. 1 and 2 instituted Title Suit No. 63 of 1955 for declaration that the sale in Certificate Case No. 3329 of 1952/53 had the effect of a money sale and as such did not affect the Karsha interest of the plaintiffs, namely, the decree‑holders‑respondents before me. The suit was decreed and that decree was confirmed in appeal. The ordering portion of the decree shows that the sale in the said Certificate case had the effect of a money decree, and as such did not affect the korfa interest of the plaintiffs in the lands sold and that right was not liable to be annulled by the defendant and that the defendant 1 was permanently restrained from interfering with the possession of the plaintiff in the land given in the Schedule of the plaint. The decree‑holders‑respondents put the decree into execution and sought for relief under order XXI, rule 32 (1) of the Code of Civil Procedure against the appellants after punishment by attachment and sale of some of the properties on the allegation that they were bound by the decree being transferees pendente lite, but had disobeyed the injunction by interfering with the decree‑holders' possession in the decretal land.

2. The execution was opposed by the transferees contending inter alia that the doctrine of pendente lite was not applicable to them, that they were not bound by the injunction as they were not made parties in the suit nor did they disobey the injunction and that the present execution case was not maintain able. This objection was resisted by the decree‑holder.

3. On the pleadings one question arose for determination, namely, whether in the circumstances of the case clause (5) of rule 32, Order XXI of the Code was applicable. The executing Court after consideration of the relevant provisions of the Code and also section 52 of the Transfer of Property Act held that the injunction order being only prohibitory one, the relief under rule 32 (5) of the said Order was not available. For this he relied on the case of Hem Chandra Naskar and another v. Narendra Nath Bose and others (A I R 1934 Cal. 402). On the other hand, the learned Subordinate Judge relying on the provision of section 50 of the Code and section 52 of the Transfer of Property Act and the case of Sm. Lilabati Dasi v. Chitpur Golabari Company Ltd. (42 C W N 637) and other authorities held that the provision of clause (5) of rule 32 of Order XXI of the Code of Civil Procedure was applicable. In this view of the matter he set aside the order of the learned Munsif and restored the execution case to file and directed him to proceed with it in accordance with law. Hence the present appeal at the instance of the transferees.

4. The learned Advocate appearing for the appellants has submitted that the present case does not come under clause (5) of rule 32 of Order XXI of the Code of Civil Procedure and in support of this contention he has relied on the cases of Hem Chandra Naskar and another v. Narendra Nath Bose and others Angad and others v. Madho Ram and others (A I R 1938 All. 416) ; Toon Lal and others v. Sonoo Lal and others (A I R 1938 Pat. 522) ; Nari Chinnabba Chetty v. E. Chengalroya Chetty and others (A I R 1950 Mad. 237) and the case of Sakar Lal Jawantrai v. Bat Parvatibai (I L R 26 Bom. 283) and also the case of Saleh Ahmed Chowdhury and others v. Kabir Ahmed and others (P L D 1960 Dacca 1022). He has further contended that when a prohibitory injunction is violated, the decree‑holder's remedy is not by an application under Order XXI, rule 32 but by a separate proceeding. For this contention he has also relied on some of the cases referred to above. On the other hand, Mr. Roy appearing for the respon dents has contended that the case is governed by clause (5) of rule 32 of Order XXI of the Code for which he has relied on the case of Amritlal Vadilal v. Mantilal Lalbhai (A I R 1931 Bom. 280) ; Krishnabai Pandurang Salagare and others v. Savalaram Gangaram Kum rekar (A I R 1927 Bom. 93) and the case of Sm. Lilabati Dasi and others v. Chitpur Golabari Co. Ltd. To substantiate the views expressed in those cases Mr. Roy has also relied on the case of Isan Chunder Sirkar and another v. Beni Madhub Sirkar and another (I L R 24 Cal. 62) the case of Lalji Mal v. Nand Kishore (I L R 19 All. 332) and the case of Parmeshari Din v. Ram Charan and others (41 C W N 1130 (P C)). It can be pointed out at this stage that the second set out of cases relied on by Mr. Roy has no bearing to the present case. In those cases it has been decided what right can be obtained by a transferee from one of the parties during the pendency of the suit or during the pendency of attachment but the provision of rule 32 of Order XXI was not for consideration in those cases.

5. Now at the beginning I propose to deal with the pro vision of rule 32 of Order XXI of the Code. Clause (1) of rule 32 provides: "Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or 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 restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both." From the aforesaid provision of clause (1) remedy for enforcing the decree has been provided in case of wilful failure to carry out the injunction by the judgment‑debtor though he had an opportunity for obeying the decree. In such a case the decree may be enforced by the procedure laid down therein: Then again the words are `wilfully failed' but not `wilfully disobeyed' or, violated the injunction order. It appears that when there is a wilful failure the decree may be enforced. Now can it be said that when there is a violation of the injunction order, the decree may be enforced as against the judgment‑debtor? In my opinion when there is violation there remains no decree to be enforced. Then again under this clause when there has been a violation of the injunction order there is no provision for evicting the persons who violated the injunction order but only for enforcing a decree which can be enforced. Furthermore, such decree for prohibitory injunction does not provide for how the judgment -debtor who has violated the injunction order can be thrown out of the land. Clause (5) of rule 32 of Order XXI makes the specific provision when by the decree of the Court it is required that an act is to be done and in case of failure of performing the act required to be done by the judgment‑debtor but the same may be done so far as practicable by the decree‑holder or some other persons appointed by the Court. So, apparently this clause (5) has no bearing to or connection with the case of a prohibitory injunction order. This view of mine finds support in the cases cited by the learned Advocate for the appellants. II have gone through the cases relied on by Mr. Roy appearing for the respondents and I am not in full agreement with' the views expressed therein. At some stage the Calcutta High Court was in favour of the view contended by Mr. Roy but subsequently that view was not adhered to by the same High Court. In support of my view, I only refer to one of the cases cited by the learned Advocate for the appellants, namely, the case of Angad and others v. Madhoo Ram and others Ganga Nath, J. observed :‑

"As soon as an act which is restrained from being done under a prohibitory injunction is done, it passes the stage of restraint or prevention. The undoing of the act that has already been done is not the same thing as restraining the act from being done. If Clause (5), rule 32 was made applicable to prohibitory injunctions, the relief that a decree‑holder ought to seek from the Court under it would be its assistance to provide measures necessary for the prevention of the doing of an act." In this connection it may be also observed that prohibitory Injunction order does not pass with the land as by the decree no right, title and interest is created or determined in the property of the suit.

6. Having considered all the aspects, I am of opinion the when a prohibitory injunction is violated, the remedy is not by putting the decree into execution but by adopting other measures as provided by the law. As in the present case, the prohibitory injunction has been violated, the decree is not executable and the execution case is not maintainable for any of the remedies under rule 32 of Order XXI of the Code of Civil Procedure.

7. Now coming to the merits of the case which has not been considered by any of the Courts below, it appears that when the judgment‑debtor No. I purchased the subordinate interest for arrears of rent on 26th of February 1955 he entered into an agreement for sale with the judgment‑debtors 2 to 4 on 17th of November 1955 at least as evidenced from the note on kabala Exh. 1 by the Sub‑Registrar dated 19‑1‑56, which is as follows :‑‑

"He is permitted to transfer agricultural lands as per Schedule below in the document ; vide Collector's Memo. No. 3587/D.M. dated Comilla the 1st December 1955." But the suit was instituted on 12‑12‑55 and the document was executed on the basis of that permission of the Collector on the 19th of January 1956, and was filed In Court on 27 of May 1957 and the decree was passed on 31st of March 1958. In the suit of the decree‑holder‑respondent a specific allegation was made that the defendant, namely, the judgment‑debtor No. I had already parted with his right, title and interest in favour of certain other persons but no notice was taken of that averment in the written statement filed by the judgment‑debtor No. I. Furthermore the Judgment‑debtors Nos. 2 to 4 entered into an agreement for sale before the suit was instituted and as such they could have enforced that agreement in Court. Now the question is whether in such circumstances it can be held that the judgment‑debtors Nos. 2 to 4 obtained transfer during the pendency of the suit either for the purpose of section 52 of the Transfer of Property Act or under section 50 of the Code of Civil Procedure. In my opinion, this agreement for transfer having been entered into before the institution of the suit by the respondent‑decree‑holder cannot be affected either by the provision of section 50 of the Code or the provision of section 52 of the Transfer of Property Act and attract the operation of rule 32 of Order XXI of the Code, they being of penal nature. It further appears from the document Exh. 1 that the judgment debtors Nos. 2 to 4 did acquire the title of the decree‑holder as It appears from the Exh. 1 that It is only jote right, namely occupancy right belonging to the judgment‑debtor No. 1 but not the Korfa right belonging to the decree‑holder‑respondent.

8. I accordingly allow the appeal with costs, set aside the judgment and order of the lower appellate Court and restore those of the trial Court.

9. Leave under clause 5 of the Letters Patent, as prayed for, is refused. S. Q. Appeal allowed.