JUDGMENT
S.N.P. Singh, J.
1. This civil revision application has been filed by the judgment-debtors first party and it arises out of an order dated the 24th of August, 1968, passed by the learned Munsif, 2nd Court, Begusarai, in Execution Case Np. 12 of 1966.
2. The relevant facts may be briefly stated as follows. Badri Poddar, father of Anant Poddar and Dwarka Poddar (opposite parties 1 and 2 respectively), instituted Title Suit No. 95/27 of 1951/1952 in the Court of the Second Munsif, Begusarai, against Sitaram Gope, father of the petitioners, and Local Board, Begusarai, claiming declaration of title and confirmation of possession in respect of 15 dhurs of land out of Plot No. 3354. He also sought the relief of permanent injunction restraining the defendants from interfering with his possession. It appears that the original plaintiff and Sitaram Gope (defendant No. 2) died during the pendency of the suit and they were substituted by their legal heirs. The suit was decreed by the trial Court and the possession of the plaintiffs was confirmed. The defendants were restrained perpetually from interfering with the possession of the plaintiffs over the suit land. The decree passed by the trial Court was ultimately affirmed by this Court in Second Appeal No. 84 of 1961.
On the 12th of March, 1966, the decree-holders opposite party filed an application under Order 21, Rule 32 (1) of the Code of Civil Procedure which was numbered as Execution Case No. 12 of 1966. In that application they alleged that after the passing of the decree the judgment-debtors interfered with the possession of the decree-holders and they put certain structures on plot No. 3354 and thereby disobeyed the order of permanent injunction. Accordingly a prayer was made for arrest and detention of the judgment-debtors in Civil prison and for attachment of certain moveable properties specified in Schedule I of the petition. As it appears from the order of the learned Munsif, the judgment-debtors took the plea of limitation and maintainability of the application filed by the decree-holders. The learned Munsif decided the question of limitation separately by some previous order.
In his order dated the 24th of August, 1968, he decided the question of maintainability and considered the merit of the application. He held that the application was maintainable and the judgment-debtors were guilty of civil contempt. Accordingly he passed an order directing the attachment of the movable properties mentioned in Schedule I of the application filed by the decree-holders on failure of the petitioners to remove the structures within three months of the date of the order. The learned Munsif passed the above order under Sub-clause (1) of Order 21, Rule 32 of the Code of Civil Procedure. Being aggrieved by this order
the petitioners filed an appeal in the court of the Subordinate Judge at Begusarai and the same was numbered as Miscellaneous Appeal No. 33 of 1968. On the 5th of December, 1968, the learned Subordinate Judge dismissed the appeal summarily oh the ground that it was not maintainable. The petitioners then filed this civil revision in this Court.
3. The only point which has been canvassed in this Court is the question whether an appeal was maintainable against the order passed by the Munsif. Mr. Kailash Roy, learned Counsel appearing for the petitioners, in the first instance, urged that an appeal is maintainable under Section 104 (1) (h) of the Code of Civil Procedure. There does not appear to be any substance in this contention. As provided under Sub-clause (h) of Section 104 (1), an appeal lies from an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree. In the instant case the learned Munsif did not pass an order directing the arrest or detention of the petitioners in civil prison although a prayer for the same had been made by the decree-holders. The order of the Munsif cannot be interpreted as an order imposing a fine on the judgment-debtors. The order in question is simply an order of attachment of certain moveable properties. There is yet another difficulty in holding that that the order will come within the scope of Clause (h) of Section 104 (1) of the Code of Civil Procedure inasmuch as, for the reasons which I am going to state presently, the order must be held to have been passed in execution of a decree. The provision of Sub-clause (h) of Section 104 (1) is, therefore, not attracted.
4. Learned counsel appearing for the petitioners next contended that an order passed by a Court under Rule 32 (1) of Order 21 relates to execution and satisfaction of a decree between the parties to the suit and as such the provisions of Section 47 of the Code of Civil Procedure will be attracted and the order will be appealable. The above contention raised on behalf of the petitioners has substance and it must be accepted. Provisions for different modes of execution for different types of decrees have been made in Rules 30 to 36 of Order 21. Rule 32 (1) of Order 21 provides, inter alia, that in a case of a decree for injunction if a party against whom a decree has been passed has had an opportunity of obeying the decree but he has wilfully failed to obey it, the decree may be enforced by his detention in the civil prison or by the attachment of his property or by both. It is manifest that an order passed under Sub-rule (1) is an order relating to the execution of the decree and such an order will come within the ambit of Section 47 of the Code of Civil Procedure. Mr. K. K. Sinha, learned counsel appearing for the decree-holders opposite party could not cite any direct decision in support of his contention that such an order will not come within the purview of Section 47 of the Code of Civil Procedure and as such it will not be appealable.
Learned counsel, however, referred to the decisions in the cases of Ram Chandra Naskar v. Narendra Nath Bose, AIR 1934 Cal 402, Toon Lal v. Sonoo Lall, AIR 1938 Pat 522 and Angad v. Madho Ram, AIR 1938 All 416 and submitted on the basis of those decisions that the remedies of the decree-holders in a case of violation of prohibitory injunction are twofold, namely, to file a fresh suit and to file an application under Rule 32 (1) of Order 21 of the Code of Civil Procedure for the enforcement of the decree by arrest and detention of the judgment-debtors in the civil prison or by attachment of their property or by both. Thus, according to learned counsel, when the decree-holders have a remedy by way of a suit, an order passed under Rule 32 (1) of Order 21 cannot be held to be an order relating to the execution or satisfaction of the decree within the meaning of Section 47 of the Code of Civil Procedure and it will not come within its ambit. It is not possible to accept this contention of learned counsel. In the first place, in all the cases, which have been relied upon by Mr. Sinha, appeals had been entertained.
In none of the cases there is even a casual observation that no appeal is maintainable against an order passed under Rule 32 (1) of Order 21. Secondly, even if some relief can be granted to the decree-holder in a suit filed by him when an order of injunction has been violated, it cannot be held that the decree-holder can get the same relief in a suit, viz., the enforcement of the decree, which he would get by filing an application under Order 21, Rule 32 (1). Indeed, it has not been held in any of the cases that a decree-holder can get the same relief in a suit filed by him which he can get by filing an application under Order 21, Rule 32 (1). To support his contention that an order passed under Rule 32 (1) of Order 21 is an order relating to the execution of the decree and will come within the ambit of Section 47, Mr. Kailash Roy referred to a number of decisions. I do not consider it necessary to refer to all the decisions which have been cited by Mr. Roy.
I would only refer to the decision in the case of Nawab Singh v. Mithu Lal, AIR 1935 All 480. There is a great similarity between the facts of that case and the facts of the instant case. In that case it was observed as follows:
“There is a specific provision in Order 21 Rule 32, Civil P. C., which provides for the execution of a decree for injunction. It is futile to argue therefore that the only remedy of a decree-holder is to bring a separate suit for damages.
Under Sub-rule (1) a decree for injunction can be executed by the detention of the judgment-debtor in civil prison or by the attachment of his property or by both. This provision obviously applies to both kinds of decrees whether they be for an injunction ordering the defendant to do something or for restraining him or prohibiting him from doing something.”
The above observation in that case fully supports the view that an application under Order 21, Rule 32 is an application relating to the execution of a decree.
5. For the reasons stated above, I hold that the appeal was maintainable and the learned Subordinate Judge failed to exercise his jurisdiction in dismissing the appeal in limine on the ground that it was not maintainable. Accordingly I allow this application, set aside the order of the learned Subordinate Judge and send back the case on remand to him for disposal of the appeal (Miscellaneous Appeal No. 33 of 1968) on merit in accordance with law. There will be no order as to costs of this Court.
Sarwar Ali, J.
6. I agree.