IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

ON THE 23rd DAY OF APRIL 2018

BEFORE

THE HON'BLE MR.JUSTICE RAVI MALIMATH

AND

THE HON'BLE MR.JUSTICE S.G.PANDIT

C.C.C. No.100212 OF 2017 (CIVIL)

BETWEEN:

SRI. HAJRATSAB S/O MODINSAB NADAF AGE: 66 YEARS, OCC: RETIRED RAILWAY EMPLOYEE, RESIDENT OF MOTEBENNUR, TALUK: BYADGI, DIST: HAVERI.

... COMPLAINANT

(By Sri. M. KUSUMAKAR, ADVOCATE)

AND

• 1. SRI. JAMALSAB S/O MODINSAB NADAF URF PINJAR, AGE: 55 YEARS, OCCUPATION: RAILWAY EMPLOYEE, RESIDENT OF HOSPET, TQ. RANEBENNUR, NOW AT HOUSE NO.24B RAILWAY QUARTERS, HARIHAR, TALUK: HARIHAR, DISTRICT: DAVANAGERI.
• 2. SRI. NAGARAJ S/O SHIVAPPA ANWERI AGE: 37 YEARS,

OCCUPATION: AGRICULTURE, RESIDENT OF MOTEBENNUR, TALUK: BYADGI, DIST: HAVERI.

• 3. SMT. FARIDABANU W/O JAMALSAB NADAF URF PINJAR, AGE: 53 YEARS, OCCUPATION: HOUSE WIFE, RESIDENT OF HOUSE NO.24B, RAILWAY QUARTERS, HARIHAR, TALUK: HARIHAR, DISTRICT: DAVANAGERI.
• 4. SRI SHABBIR S/O JAMALSAB NADAF URF PINJAR, AGE: 28 YEARS, OCCUPATION: COOLIE, RESIDENT OF 1ST MAIN, 1ST CROSS TIPPUNAGAR, YANTRAPUR, HARIHAR, TALUK: HARIHAR, DISTRICT: DAVANAGERI.
• 5. SRI SHARIFSAB S/O JAMALSAB NADAF URF PINJAR, AGE: 25 YEARS, OCCUPATION: COOLIE, RESIDENT OF 1ST MAIN, 1ST CROSS TIPPUNAGAR, YANTRAPUR, HARIHAR, TALUK: HARIHAR, DISTRICT: DAVANAGERI.
• 6. SMT. IMAMBI C/O KHASIMSAB AGE: 59 YEARS, OCCUPATION: HOUSE WIFE, RESIDENT OF BHAGAVAT NAGAR, BIRUR, TALUK: BIRUR, DISTRICT: CHIKKAMAGALURU.
• 7. SMT. MAMATAJBEGAM C/O CHAMANSAB KAMATAGI, AGE: 39 YEARS, OCCUPATION: HOUSE WIFE, RESIDENT OF KOLUR,

TALUK: HAVERI, DIST: HAVERI.

... ACCUSED (By Sri. HARSHAWARDHAN PATIL FOR SRI. M.H. PATIL, ADVOCATE FOR A1. PETITION AGAINST ACCUSED Nos.2 TO 7 IS DISMISSED VIDE ORDER DATED 17.02.2018)

THIS CCC IS FILED UNDER SECTIONS 11 & 12 OF THE CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF CONSTITUTION OF INDIA, PRAYING THIS HON'BLE COURT TO INITIATE AND PUNISH THE ACCUSED PERSONS UNDER THE CONTEMPT OF COURTS ACT 1971, FOR WILLFUL DISOBEDIENCE OF THE JUDGMENT AND DECREE DATED 29.01.2003, PASSED BY THE HON'BLE CIVIL JUDGE (Jr.Dn) AND J.M.F.C. BYADGI, IN ORIGINAL SUIT NO.53 OF 1998 i.e., ANNEXURE-A IN THE INTEREST OF JUSTICE AND EQUITY.

*****

THIS CCC COMING ON FOR ORDERS, THIS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:

ORDER

The complainant seeks initiation of proceedings for contempt against the accused for willfully disobeying the judgment and decree dated 29.01.2003 passed by the Civil Judge (Junior Division) and JMFC, Byadgi in O.S. No.53 of 1998. It is his plea that in terms of the said judgment and decree, the suit of the plaintiff for declaration that the gift deed executed by defendant No.2 in favour of defendant No.1 in respect of the suit schedule properties be declared as null and void and for further relief of permanent injunction from alienating the suit schedule properties was decreed. Further defendant No.1 was restrained permanently not to alienate the suit properties against the interest of the plaintiff. However, defendant No.1 has sold the suit property on 16.06.2017. Therefore, there is violation of the judgment and decree. Hence, he has committed contempt of Court as defined under Section 2(b) of the Contempt of Courts Act, 1971.

2. On the other hand, counsel for the accused disputes the same. He contends that aggrieved by the said judgment and decree, defendant No.1 has filed R.A. No.35 of 2016 before the Senior Civil Judge, Byadagi, and the said appeal is pending consideration. Therefore, when the judgment and decree is under challenge in a manner known to law, the question of having committed disobedience would not arise. It is his further plea that if at all the plaintiff is able to make out a case of

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disobedience, then the appropriate provisions to be invoked are under Order XXXIX Rule 2A of the Code of Civil Procedure. That the proceedings of contempt cannot be misused as is sought to be done. That accused Nos.3 to 7 have been wrongly impleaded herein. That even if the case of the plaintiff is to be accepted, the alleged contempt is only against accused No.1. They have been made as parties only to harass them. Accused No.2 has also filed his statement of objections indicating that he is not the accused. That he has not committed any disobedience of any order.

3. In support of his case, the accused relies on the judgment of the Hon'ble Supreme Court in the case of Kanwar Singh Saini vs. High Court of Delhi reported in (2012) 4 Supreme Court Cases 307 with reference to para 18 to indicate that law does no permit to skip the remedies available under Order XXI Rule 32 of the Code of Civil Procedure, 1908, and resort to contempt proceedings for the reason that the Court has to exercise its discretion under the Contempt of Courts Act especially when an

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effective and alternative remedy is not available to the person concerned. Therefore, he pleads that the appropriate proceedings should be invoked and not the Contempt of Courts Act.

4. During the course of this proceedings, by the order dated 17.02.2018, the petition was dismissed against accused Nos.2 to 7.

5. The provision of Order XXI Rule 32 of the Code of Civil Procedure, 1908, reads as follows:-

"Order XXI-Execution of Decrees and orders 32. Decree for specific performance for restitution of conjugal rights, or for an injunction

(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an 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 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.

(2) Where the party against whom a decree for specific performance or for an injunction has been passed in a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for (six months) if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance(if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of (six months) from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the court, at the cost of the judgment debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree.

(Explanation: For the removal of doubts, it is hereby declared that the expression " the act required to be done" covers prohibitory as well as mandatory injunctions.)"

In considering the said issue, the Hon'ble Supreme Court held in Kanwar Singh Sanis's case at para 18 as follows:

"18. In case there is a grievance of noncompliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and crossexamine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2-A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1971 Act when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provision of Order 39 Rule 2-A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree."

It has further held in para 21 as follows:

"21. The provision of Order 21 Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act. Still to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of Order 21 Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible."

and in para 27, the Hon'ble Supreme Court held that in a case involving the private rights of the parties for which adequate and sufficient remedy had been provided, initiation of the proceedings for contempt by the High Court is wholly unwarranted. Here too, the facts of the case are similar. Therefore, initiation of proceedings for contempt would not be appropriate in terms of the aforesaid judgment of the Hon'ble Supreme Court.

Therefore, we are of the considered view that the proceedings require to be dropped. However, liberty is always available to the complainant to pursue his remedies in the manner known to law.

The proceedings are dropped. The accused is discharged.

Sd/- Sd/-

JUDGE JUDGE

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