Whether court should decide suit and application for breach of injunction by common judgment?

 A proceeding under Order XXXIX. Rule 2A, C.P.C., initiated on the ground of disobedience or breach of injunction order, is in the nature of a criminal proceeding as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order. Since a punishment is imposed and a person is sent to Jail, the principle on which these proceedings are decided are entirely different. Here the principle of criminal law will apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the injunction order even though he had full knowledge of the same. The burden of proving its case in such cases lies entirely on the plaintiff. The principle on which a civil suit is decided are different as here decision on the issues arising out of pleadings is taken on the basis of preponderance of evidence. Therefore, a common judgment and order deciding the main suit as well as application under Order XXXIX, Rule 2A. C.P.C. will not be proper. In my opinion, the order passed by learned Munsif on 11.12.1989 holding the defendants guilty in Misc. Case No. 67 of 1987 and directing them to be detained in civil prison is liable to be set aside on this ground alone.

Citation : AIR 1998 All 228

IN THE HIGH COURT OF ALLAHABAD

C.M.W.P. No. 682 of 1990

Decided On: 06.02.1998

 Gyan Chand Jain   Vs.  XIIIth Addl. District and Sessions Judge, Agra 

Hon'ble Judges/Coram:
G.P. Mathur, J.

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When civil court can order detention of Judgment debtor in civil prison?

The application which was filed by the respondent

herein, wad admittedly preferred under Order XXI rule

32(1) of the Code of Civil Procedure. The perusal of sub

Section (1) of Rule 32 of Order XXI Code of Civil

Procedure, would explicitly make it clear that where the

party against whom a decree for specific performance of

contract, or for restitution of conjugal rights, or for an

injunction has been passed, had opportunity of obeying

the decree and has willfully 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 specific performance of contract, or for an

injunction by his detention in the civil prison, or by the

attachment of his property, or by both. Therefore, on

careful reading of sub Section (1) of Rule 32 of Order XXI

Code of Civil Procedure make it abundantly clear that

that the Court has jurisdiction to pass the order of

detention in the civil prison, if the decree is for specific

performance of contract, or for an injunction is not

followed, in spite of having opportunity of obeying the

decree, and Judgment Debtor has willfully failed to obey

it.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

 CIVIL REVISION APPLICATION NO. 69 OF 2011

 Prakash S/o Bala Dubele,

VERSUS

Janabai W/o Subhash Dubele,

 CORAM :- S.S. SHINDE, J.

 Judgment Pronounced on :- 3rd August, 2011

Citation: 2011(6)MHLJ 379

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Bom HC:Orders directing party to be detained in civil prison are not to be lightly passed

Granted that some deterrent action needed to be taken,
but directing detention of the respondents for a period of 90
days in civil prison, was highly disproportionate. Orders
directing party to be detained in civil prison are not to be
lightly passed. It is true that majesty of law needs to be
upheld, but such whimsical and arbitrary orders tend to lower
the majesty of law.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 108 OF 2014
Shri Anant Gopinath Kessarkar

Versus
Shri Teodoro Jacob Fernandes,

Coram:- N. M. JAMDAR, J.
Date:- 18 February 2015
Citation; 2016(2) ALLMR278

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Procedure to be followed by executing court for prompt execution of money decree

In cases for execution of decree for recovery of money, an important
step is to ascertain the assets/means of the judgement debtor to satisfy the
decree. Order XXI Rule 41(2) of the Code of Civil Procedure empowers the
executing Court to direct the judgement debtor to disclose his assets on
affidavit in Form 16A, Appendix E to ascertain his assets/means to satisfy
the decree. Order XXI Rule 41(2) of the Code of Civil Procedure is
reproduced herein below:-
“Order XXI Rule 41
(2) Where a decree for the payment of money has remained
unsatisfied for a period of thirty days, the Court may, on the
application of the decree-holder and without prejudice to its
power under sub-rule (1), by order require the judgmentdebtor
or where the judgment-debtor is a corporation, any
officer thereof, to make an affidavit stating the particulars of
the assets of the judgment-debtor.”
3. Order XXI Rule 41(1) of the Code of Civil Procedure empowers the
executing Court to orally examine the judgment debtor. Order XXI Rule
41(1) of the Code of Civil Procedure is reproduced hereunder: -[
“Order XXI
Rule 41. Examination of judgment-debtor as to his property.-
(1) Where a decree is for the payment of money the decreeholder
may apply to the Court for an Order that—
(a) the judgment-debtor, or
(b) where the judgment-debtor is a corporation, any officer
thereof, or
(c) any other person,
be orally examined as to whether any or what debts are owing
to the judgment-debtor and whether the judgment-debtor has 
any and what other property or means of satisfying the decree;
and the Court may make an order for the attendance and
examination of such judgment -debtor, or officer or other
person, and for the production of any books or documents.”
4. In the event of the judgment debtor’s default to file the affidavit of
assets, Order XXI Rule 41(3) of the Code of Civil Procedure empowers the
Court to detain the judgment debtor in civil prison for a term up to three
months. Order XXI Rule 41(3) of the Code of Civil Procedure is reproduced
below:-
“Order XXI Rule 41
(3) In case of disobedience of any order made under sub-rule
(2), the court making the order, or any court to which the
proceeding is transferred, may direct that the person
disobeying the order be detained in the civil prison for a term
not exceeding three month unless before the expiry of such
terms the court directs his release.”

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th January, 2016

 EX.P. 275/2012
M/S BHANDARI ENGINEERS
& BUILDERS PVT LTD .

v
M/S MAHARIA RAJ
JOINT VENTURE & ORS .

CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
Citation: 227(2016)DLT302, 2016(155)DRJ212

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Procedure to be followed by court when JD appears before court in obedience to notice issued U/R 37 of Order 21 of CPC

Applying the parameters of the afore said provision in

the instant case, the petitioner/judgment debtor, in the present
case, had appeared before the learned Judge in obedience to
notice issued under Rule 37 of Order 21 of the Code of Civil
Procedure, but although it was incumbent upon the learned Judge
to proceed to hear the decree-holder and to take all such
evidence as may be produced by him in support of his application
for execution, and although it was incumbent upon the learned
Judge
then to give judgment debtor an opportunity of showing
cause why he should not be committed to civil prison, the learned
Judge did not follow the said procedure of inquiry before passing
the impugned order dated 28.4.2000. Moreover, upon conclusion
of inquiry, it was obligatory upon the learned Judge to follow the
procedure prescribed in sub-rule (3) and more particularly proviso
thereof of Rule 40 of Order 21 of the Code of Civil Procedure, but
the learned Judge did not comply with the said provisions prior to
passing the impugned order on 28.4.2000. Besides that, it was

expected from the learned Judge to follow the procedure as
prescribed in amended sub-rule (6) of Rule 40 of Order 21 of the
Code of Civil Procedure, but same has not been followed in letter
and spirit while passing the impugned order dated 28.4.2000.
In the circumstances, it is amply clear that the

impugned order passed by the learned Civil Judge, Senior

Division, Ahmednagar on Exh.24 in Special Darkhast No. 64 of
1990 on 28.4.2000 is illegal, improper and erroneous and same
deserves to be quashed 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CIVIL REVISION APPLICATION NO. 525 OF 2000

Satish s/o Ramchandra Shahapurkar,

VERSUS

Gorakshnath Madhavrao Pund,

Coram : Shrihari P. Davare, J.

Date of pronouncing:17.7.2009
Citation;2009(6)ALLMR660,2009(6)BomCR850,
2010(1)AIRBomR591

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Whether the court can again send judgement debtor to civil prison for new breach of injunction done by him?

 It is thus clear that it is not that once a person is made to suffer imprisonment or detention in civil prison, he cannot be proceeded with on second occasion for the fresh breach committed by him. Each breach is independent and is actionable in law. Merely by putting a person in civil prison the decree does not get wiped out or satisfied. The Executing Court was therefore absolutely wrong in applying the doctrine of constructive res judicata and holding that the judgment-debtor cannot be imprisoned on second occasion. The impugned Order of the Executing Court is unsustainable in law. The same deserves to be set aside.

Bombay High Court

Smt. Yashodabai Ganesh Naik ... vs Shri Gopi Mukund Naik, Major, ... on 4 July, 2002

Author: V Daga

Equivalent citations: AIR 2003 Bom 77, 2003 (1) BomCR 346, 2002 (3) MhLj 801

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