2025 (1) TMI 1582 - SC - Indian Laws

Recovery of possession based on title to the suit land and for permanent injunction - restraint from disturbing the peaceful possession of the respondents - mandatory requirement under Order XXI Rule 11-A of the Code of Civil Procedure - HELD THAT - Section 51 defines the jurisdiction and power of the court to enforce execution. The manner of execution of a decree is laid down in the First Schedule. The Section enumerates in general terms various modes by which the court may order execution of a decree according to the nature of relief granted in favour of a decree-holder - Sections 51 and 58 respectively should be read together. Section 51 defines the power and jurisdiction of the executing court to enforce execution Section 58 fixes the period for which the judgment-debtor can be detained in a civil prison. Rule 11-A states that where an application is made for the arrest and detention of the judgment-debtor it must state or accompanied by an affidavit - specifying the grounds on which arrest is sought. Rule 11-A of Order 21 is in conformity with the substantive provisions of proviso to Section 51 of the Code. 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 and any act in violation or breach of decree of permanent injunction is a continuing disobedience entailing penal consequences. There is no force in the argument of the learned counsel appearing for the appellants that the execution case could not have been instituted by the respondents herein after a period of 40 years from the date of passing of the decree in the original Title Suit. The decree for permanent injunction can be enforced or becomes enforceable when the judgment debtor tries to disturb the peaceful possession of the decree holder or tries to dispossess the decree holder in some manner or the other or creates obstruction in the peaceful enjoyment of the property over which he has a declaration of title from the civil court in the form of a decree. Whether the executing court adopted the correct procedure before passing the order directing that the appellants herein be arrested and detained in civil prison for a period of 30 days and that their property be attached? - HELD THAT - In the instant case the executing court has proceeded to make the order of arrest detention in a civil prison for a period of 30 days and attachment of property against the appellants herein when there was absolutely no material placed by the respondents herein to satisfy it that the appellants have had an opportunity of obeying the decree for injunction but have wilfully disobeyed it. In fact the order of arrest and detention made by the executing court is based on a surmise that the respondents (decree-holders) have levelled allegations that the appellants herein are interfering with their peaceful possession of the property in question and in this regard few complaints of breaches made to the police were placed before the executing court. 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. We do not propose to go into the question whether a separate affidavit should have been filed by the respondents herein along with the application preferred before the executing court levelling allegations of breach of the permanent injunction. Jurisdictional error - HELD THAT - Undoubtedly 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 - 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. It is true that there was some delay on the part of the appeal lants herein in responding to the summons issued by it but at the same time having regard to the severe consequences the executing court should have been a little more considerate while declining even to take the objections on record and give one opportunity of hearing to the appellants before passing the order of arrest detention in a civil prison and attachment of the property. 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. The impugned order passed by the High Court is unsustainable in law - Appeal allowed.

Summary

ISSUES:

Whether an execution petition filed after a lapse of nearly 40 years from the date of decree for permanent injunction is maintainable.Whether the executing court was justified in ordering arrest and detention of judgment-debtors in civil prison without recording a finding that they wilfully disobeyed the decree after having an opportunity to obey it.Whether the execution application complied with the mandatory requirement under Order XXI Rule 11-A of the Code of Civil Procedure, 1908, to state or accompany an affidavit stating the grounds for arrest and detention.Whether the executing court committed jurisdictional error by refusing to admit written objections and by passing the execution order ex parte.The scope and application of the supervisory jurisdiction of the High Court under Article 227 of the Constitution in reviewing orders passed by subordinate courts in execution proceedings.The legal principles governing jurisdictional error and its relevance in execution proceedings.

RULINGS / HOLDINGS:

The execution petition filed after nearly 40 years was maintainable as "a decree for permanent injunction shall not be subject to any period of limitation" under the proviso to Article 136 of the Limitation Act, 1963.The executing court erred in ordering arrest and detention of the judgment-debtors without recording a finding that they "had an opportunity of obeying the decree and has wilfully failed to obey it," which is a mandatory condition under Order XXI Rule 32(1) CPC.The requirement under Order XXI Rule 11-A CPC that an application for arrest and detention "shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for" is mandatory and non-compliance vitiates the order of arrest; the executing court should have afforded an opportunity to file such affidavit.The executing court committed jurisdictional error by refusing to admit the written objections and proceeding ex parte without affording a hearing, especially given the severe consequences of arrest, detention, and attachment of property.The High Court failed to properly exercise its supervisory jurisdiction under Article 227 by not identifying the jurisdictional error in the executing court's order and by dismissing the revision application without adequate reasoning.Jurisdictional error includes errors such as ignoring relevant material, relying on irrelevant material, failure to observe procedural fairness, and making decisions without evidence; such errors render the decision a nullity and justify interference under Article 227.

RATIONALE:

The Court applied Section 51 and Section 58 of the Code of Civil Procedure, 1908, which govern the powers of courts to enforce execution, including arrest and detention of judgment-debtors, and the permissible duration of such detention.Order XXI Rule 32 CPC specifically provides the mode of execution of decrees for injunctions, including detention in civil prison or attachment of property, but only if the judgment-debtor wilfully disobeys the decree after having an opportunity to comply.Order XXI Rule 11-A CPC mandates that applications for arrest and detention must state or be accompanied by an affidavit specifying grounds, ensuring procedural fairness and enabling the court to assess the necessity of deprivation of liberty.The Court relied on precedent affirming that decrees for prohibitory injunctions are enforceable at any time when breach occurs, and limitation does not bar execution of such decrees.The Court emphasized the principle that jurisdictional error arises when a subordinate court acts without or in excess of jurisdiction, including failure to follow mandatory procedural requirements or to consider relevant material, and that such errors justify supervisory interference.The Court referred to authoritative judicial interpretations, including the Privy Council decision in Joy Chand Lal Babu and the House of Lords decision in Anisminic Ltd., to elucidate the modern expansive concept of jurisdictional error encompassing errors of law and fact that affect the validity of a decision.The Court underscored the importance of affording an opportunity of hearing before ordering arrest and detention, especially given the drastic nature of such orders and their impact on liberty and property rights.The Court noted the High Court's failure to adequately scrutinize the executing court's order and its dismissal of the revision application without addressing the procedural and jurisdictional infirmities.The Court set aside both the executing court's order and the High Court's affirming order, while permitting the decree-holders to file a fresh execution application if there is any fresh interference with their possession, to be decided strictly on merits and in accordance with the observations made.