P L D 1952 Dacca 465 (PLP)

IBRAHIM, J.--‑ This appeal is an offshoot of a suit for resti tution of conjugal rights in which the respondent who was the plaintiff obtained a decree. Defendants Nos. 2 and 3 who are the appellants here are the maternal grandfather and the father respectively of defendant No. 1 who is the wife of the plaintiff defendant No. 1 is major. By the decree defendant No. 1 was directed to return to the plaintiff's house and live there as his wife. Two appellants and some others were directed to restore the defendant No. 1 to the plaintiff. The plaintiff applied for execution of the decree against the two appellants and attached their properties under : Order 21, Rule 32 of the Code of Civil Procedure, on the allegation that when his father went to the house of the appellants to bring his wife, the appellants threatened and drove him away. The appellants filed an objection to the execution. They denied that the plaintiff's father ever went to their house and was threatened and driven away. The learned Munsif however found that the plaintiff's allegation was proved and he dismissed the objection. An appeal from this decision was summarily dismissed by the District Judge. The appellants took an appeal to the Calcutta High Court and Das J., remanded the appeal for re‑hearing with the observa tion that the decree did not contain any penal provision and it was not a fit case for being summarily dismissed. The learned District judge thereafter upheld the decision of the learned Munsif and the appellants preferred this appeal. Order 21, Rule 32 of the Code of Civil Procedure, can have no application unless the decree sought to be executed is one for restitution of conjugal rights. The execution petition in this) case is directed not against the defendant No. 1, wife, but against the two appellants who are maternal grandfather and father, respectively. Obviously there cannot be any decree for restitution of conjugal rights against these persons and it is clear that the learned Munsif did not pass any such decree against them. The decree only directs them to make over defendant No. 1 to the possession of the plaintiff. This is not a decree for restitution of conjugal rights and the properties of the appellants cannot be attached under Order 21, Rule 32 of the Code of Civil Procedure. There cannot be any decree for restitution of conjugal rights except against the wife or the husband and it is only their property that can be attached under this rule. It is significant that the mode of execution provided for this rule does not include detention in civil prison Obvious reason is that ‑ restitution of conjugal rights cannot be had by detaining the defendant‑husband or wife‑in the prison. The only method of enforcing .the decree is by the attachment of his or her property, if after having an oppor tunity of obeying the decree he or she wilfully fails to do so. The rule does not contemplate the attachment of the property of any other person who may be co‑defendant in the suit. Mr. Muhammad Nurul Huq Choudhury, on behalf of the respondent, relies on the case of M. J. Sivarama Pillai and others v. Veerappa Pallai A I R 1914 Mad.

219. The facts are distinguishable but in any case if this case is any authority for the proposition that a decree for restitution of conjugal rights can be passed and enforced under Order 21, Rule 32, against anybody except the wife or the husband, I respectfully differ. Another condition that is to be satisfied in order to avail of the provisions of this Rule is that the defendant had an opportunity to obey the decree but failed to obey it wilfully. This, according to the findings of both the Courts below, was made out, inasmuch as the respondent's father was threatened and driven away when he went to the house of the appellants to bring defendant No.

1. This, I am afraid, cannot be construed as wilful disobedience. The decree did not direct the appellants to restore the defendant No. 1 to the respond ent's father, nor there is any finding that defendant No. 1 was at the relevant time to the house or under the control of the appellants, and it was in their power to make over to him defendant No. 1 who being major is mistress over her own affairs under the law. Evidently this has not been made out. This appeal will, therefore, succeed and is allowed with costs. A. H. Appeal allowed.