Bhudev Mallick Alias Bhudeb Mallick & Anr. vs Ranajit Ghoshal & Ors.

Held: The Law Commission considered the amendment of 1936 to Section 51 and held that the existence of the circumstances mentioned in Section 51, proviso (a) to (c) should be alleged either in the execution application or in an accompanying affidavit – As per Order XXI Rule 11-A an application made for the arrest and detention of the judgment-debtor must state or be accompanied by an affidavit specifying the grounds on which arrest is sought – This Rule is in conformity with the substantive provisions of proviso to Section 51 – Stating of grounds or filing of affidavit is essential and thus mandatory – Unless it is complied with, no arrest or detention of the judgment-debtor can be ordered. [Paras 32, 34, 35] Order XXI Rule 32 of CPC, 1908 and its effect on permanent injunction – Examined in light of judicial pronouncements: Held: A decree of permanent injunction is executable under Order XXI Rule 32 – Breach of decree of permanent injunction is a continuing disobedience entailing penal consequences – In Jai Dayal and Others v. Krishan Lal Garg and Anr., (1996) 11 SCC 588, this Hon’ble Court held that the decree of attachment made for enforcement of the perpetual injunction and mandatory injunction requires to be complied with and in case of its disobedience, the judgment-debtor is liable to detention in the civil prison and his property is liable to attachment under Order XXI Rule 32, CPC, 1908. [Para 37]

Art.136 of the Limitation Act and execution of decree of permanent injunction – In the light of judicial pronouncements: Held: The High Court of Rajasthan in Maga Ram & Anr v. Kana Ram & Ors., AIR 1993 Rajasthan 208 held that Art.136 of the Limitation Act has no application in case of execution of decree granting mandatory injunction and also the decree for prohibitory injunction become enforceable only when the judgement debtors made fresh encroachment on the disputed land – The High Court of Bombay in the case of Shri Benedito (Betty) Dias v. Armando Benedita Fernandes, 2017(4) AIR Bom. R 381 relied on: (a) Jai Dayal (supra) wherein it was held that non-compliance of decree of mandatory or prohibitory injunction is a continuing disobedience and therefore the plea of execution being barred by limitation, cannot be accepted; and (b) A decision of the High Court of Kerala wherein it was held that an application for enforcement of the decree granting prohibitory injunction shall not be subject to any period of limitation – The High Court of Punjab and Haryana in the Dilbagh Singh and Others v. Harpal Singh Alias Harpal Singh Chela and Ors., 2020 Supreme (P&H) 944 held that Order 21 Rule 32(5) has been interpreted by the Supreme Court in various judgments viz. Samee Khan vs. Bindu Khan, 1998(4) RCR(Civil) 125 (SC) to mean that in an execution proceedings of a decree for injunction, if it is found that the decree holder has been dispossessed after the date of decree, the restoration of possession can also be ordered by the Executing Court. [Paras 38-43]

Order XXI Rule 32 – Imprisonment of or attachment of property of judgment debtor – When ordered:

Held: If it is proved that the judgment debtor willfully and with impunity disobeyed an order of injunction, the court owes it to itself to pass an order of imprisonment or attachment – Failure to exercise this power in appropriate cases might verily undermine the respect for judicial institutions in the eyes of litigants – The court has to record a finding that the judgment-debtor willfully disobeyed or failed to comply with the decree in spite of opportunity afforded to him – Each breach of injunction is independent and actionable in law and the doctrine of res judicata has no application – The person seeking execution of the decree for injunction is onerous under the Rule 32(1) is to place materials before the executing Court as would enable it to conclude (i) That the person bound by the decree, was fully aware of the terms of the decree and its binding nature upon him; and (ii) That person has had an opportunity of obeying such decree, but has willfully, i.e., consciously and deliberately, disobeyed such decree, so that it can make an order of his detention as sought for. [Paras 44-46, 50] Arrest and attachment – Whether correct procedure was adopted by the Courts in this case:

Held: There was absolutely no material placed by the respondents/decree holders before the Courts that the appellants/judgment debtors have had an opportunity of obeying the decree for injunction, but have willfully disobeyed it – Only few complaints of breaches made to the police were placed before the executing court – It is true that there was some delay on the part of the appellants 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 – If at all a fresh application is filed with the same prayer before the Executing Court by the Respondents in future, it has to be dealt by the Court with keeping in mind this decision. [Paras 51-52, 59, 61] Principle of Jurisdictional Error – High Court wrongly applied it – The principle explained in light of judicial pronouncements and publication:

Held: 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 – Observation of Sir John Beaumont in Joy Chand Lal Babu v. Kamalaksha Chaudhury, AIR 1949 PC 239 that if erroneous decision which has resulted in the subordinate Court or tribunal exercising jurisdiction, not vested in it by law, or it 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 – Joy Chand case identified non-exhaustive list of jurisdictional errors like: (a) identified a wrong issue; (b) asked a wrong question;

(c) ignored relevant material; (d) relied on irrelevant material; (e) failed to observe a requirement of procedural fairness; (f) made a decision involving fraud; (g) made a decision in bad faith; (h) made a decision without evidence; (i) applied a policy inflexibly – After the decision of the House of Lords in Anisminic v. The Foreign Compensation Commission, 1967(2) AER 986 every error of law is a jurisdictional error – This concept is best explained by K.S. Paripoornan, J., in His Lordship's separate Judgment in Mafatal Industries Ltd. v. Union of India, (1997) 5 SCC 536, summarised as: I. Errors of fact – (i) Old rule: The court would quash only if the erroneous fact that was jurisdictional (ii) New rule: The court will quash if an erroneous and decisive fact was (a) jurisdictional; (b) found on the basis of no evidence; or (c) wrong, misunderstood or ignored; II. Errors of law – (i) Old rule: The court would quash only if the error was (a) jurisdictional; or (b) on the face of the record (ii) New rule: The court will quash for any decisive error, because all errors of law are now jurisdictional — Also referred to an erudite article authored by Krystal Cunningham-Foran on the topic “Jurisdictional Error” wherein a judgment rendered by the High Court of Australia setting out practical guidance for establishing jurisdictional error in the context of judicial review proceedings was discussed. [Paras 53-58]