1983 PLP 2420 (CLC)

Issue: (1) Whether the judgment‑debtor had disobeyed the decree passed by this Court? (2) Relief. After recording the evidence of the parties, the learned District Judge on issue No. 1 found there were neligible differences as regards the wall constructed by Ghulam Hussain petitioner. As for the passage, he found that petitioner/judgment-debtor haul not obeyed the decree . He observed as follows :‑ "According to the decree, the passage had to be 2"‑6' wide and 6'‑.‑OU high. A wooden door had to be fixed therein. The judgment‑debtor in violation of the decree left the passage of 2'‑51" in width and 2'‑7" high. According to the report, no human being can pass through this passage. Thus the judgment debtor did not obey the decree passed by this Court so far as the passage is concerned." As a result of his finding on issue No. 1, he directed the petition to reconstruct the passage 2'‑6" in width and 6 feet height within a week failing which he shall be sent to civil prison and his property shall also be attached. He, however, kept the execution petition pending with him.

2. The learned counsel for the petitioner has vehemently argued that the conditional order dated 15th May, 1982 is not warranted by law. As against this, the learned counsel for the respondent has defen ded the impugned order and stated that the order is in accordance with the Order XXI; rule 32, C.P.C.

3. I have beard the learned counsel for the parties at length and have gone through the record available before me. It would ‑be conve nient to reproduce Order XXI; rule 32, C. P. C. (1) Where the party against whom a decree for the specific perfor mance of a contract 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 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. The bare reading of Rule 32 makes crystal clear that there is no room for passing a conditional order. I am of the considered opinion that if the Court was inclined to provide an opportunity to the judg ment‑debtor to comply with the decree, the Court could not have stated therein "failing which he shall be sent to civil prison and his property shall also be ‑attached." The Court should have awaited for a week and on complaint of non‑compliance should have passed the order sending him to civil prison and the attachment of his property after giving him an opportunity of being heard. There is no denying the fact that on finding issue No. 1 in the affirmative, the learned District Judge could straightaway send the judgment‑debtor to civil prison and also could attach his property but this course was not adopted and the learned District Judge had thought it proper to give time to the judgment‑debtor to obey the decree.

4. For all these reasons, I am of the opinion that the order passed in para. No. 6 of the judgment was unwarranted, the same is hereby set aside with the direction that the District Judge would proceed further according to law. I am constrained to observe that since the judgment debtor had constructed the staircase and wall, it was not a case of serious nature and the proposed order of the attachment of the property and simultaneous detention in the civil prison was highly unwarranted. In case of failure to obey the decree, the learned District Judge would pass order which may be according to the situation. K. M. A. F. A. O. allowed.