Imprisonment Of Judgment-Debtor A Drastic Step; Court’s Power Under Order 21 Rule 32 CPC Is No More Than A Procedural Aid To Harried Decree-Holder: SC

The Supreme Court observed that the imprisonment of a Judgment-Debtor is a drastic step but once it is proved that he had wilfully and with impunity disobeyed an Order of injunction, the Court must make the Judgment-Debtor realise that it does not pay to defy a Decree.

The Court observed thus in a Civil Appeal filed against the Calcutta High Court’s Order by which it rejected a plea of the Judgment Debtors and affirmed the Order of the Executing Court in a Title Execution Case arising out of a Title Suit.

The two-Judge Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan remarked, “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. The court’s power under Order 21, Rule 32 is no more than a procedural aid to the harried decree-holder.”

The Bench added that where the Judgment-Debtor disobeys a Decree of injunction, he can be dealt with by his imprisonment or by attachment of his property or by both, but the Court has to record a finding that the Judgment-Debtor wilfully disobeyed or failed to comply with the Decree in spite of opportunity afforded to him. It said that the absence of such finding is a serious infirmity vitiating the Order.

AOR Joydeep Mukherjee appeared for the Appellants/Judgment Debtors while AOR Lalita Kaushik appeared for the Respondents/Decree Holders.

Factual Background

In 1965, the predecessor-in-interest of the Decree Holders, instituted a Title Suit for confirmation of possession and in the alternative for recovery of possession based on title to the Suit land and for permanent injunction. The Respondents were the legal heirs of the original Plaintiffs of the Title Suit. The subordinate judge decreed the suit and the Appellants were permanently restrained from disturbing the peaceful possession of the Respondents in so far as the Suit property is concerned. Being dissatisfied with the Judgement and Decree, the Appellants challenged the same by filing Title Appeal and the same was disposed of by the Appellate Court in 1980. In 2017, after a period of almost 40 years, the Respondents filed an Execution Case seeking to execute the Decree on the ground that the Appellants were disturbing and creating trouble in their peaceful enjoyment of the property and thereby alleged that the Appellants committed breach of the Decree of permanent injunction. Hence, a Title Execution Case was registered and the Appellants were served with the summons of the suit execution case.

As per the Appellants, although the summons was received by them, yet due to non-availability of old records, they were not in a position to appear before the Court concerned and later learned that the execution case was fixed by the Court for ex-parte disposal. However, the Executing Court declined to take the written objections of the Appellants on record, saying that the same were not maintainable. Being aggrieved, the Appellants preferred a Revision Application before the High Court and the same was admitted. Resultantly, all further proceedings of the title execution case were stayed. However, the Civil Judge allowed the execution case ex-parte and ordered the arrest of the Appellants and their detention in Civil Prison for a period of 30 days. Their property was also directed to be attached. Hence, they approached the High Court but it rejected their Revision Application and affirmed the Civil Judge’s Order. Challenging this, they were before the Apex Court.

Reasoning

The Supreme Court in the above context of the case, noted, “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 expressed its disappointment over the manner in which the High Court dealt with the litigation, more particularly while deciding the Revision application filed by the Appellants 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”, it said.

Furthermore, the Court emphasised that the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution must ascertain before interfering with any Order passed by a Subordinate Court or Tribunal whether the same suffers from any jurisdictional error.

“At times in litigation like the one on hand, the court should be guided by its conscience, more particularly keeping in mind the peculiar facts and circumstances of the case and not strictly go by the term “jurisdictional error”. It is very easy for the High Court to say that there is no jurisdictional error and, therefore, no interference is warranted but before saying so, the High Court should be mindful of the consequences that would follow like arrest, detention in civil prison and attachment of property”, it added.

The Court explained that if 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 Civil Procedure Code (CPC) or, for the matter of that, of Article 227 of the Constitution, as the case may be.

“Before we close this matter, we would like to put a question to the executing court as to why it did not deem fit to afford one opportunity of hearing to the appellants herein? What would have happened if the executing court would have permitted the appellants herein to place their written objections on record?”, it also asked.

Accordingly, the Apex Court allowed the Appeal and set aside the High Court’s Order.

Cause Title- Bhudev Mallick Alias Bhudeb Mallick & Anr. v. Ranajit Ghoshal & Ors. (Neutral Citation: 2025 INSC 175)

Appearance:

Appellants: AOR Joydeep Mukherjee and Advocate Rabin Majumder.

Respondents: AOR Lalita Kaushik

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