2013(5) ALL MR 721
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.K. DESHPANDE, J.
Bhagwat Appa Chopade & Ors. Vs. Baba Sadashiv Metkari
Writ Petition No.786 of 2004
18th July, 2013
Petitioner Counsel: Mr. M.A. Patil
Civil P.C. (1908), O.21 R.32(1) - Order detaining judgment debtor in civil prison - For breach of decree of perpetual injunction - Such order can only be passed by way of last resort - There are other modes prescribed regarding providing opportunity to judgment debtor to obey decree, to attach property if any - These modes are not considered before passing said order - Order, not proper. (Para 2)
JUDGMENT :- The order impugned in this Petition is passed by the executing Court on 12.11.2008. In Regular Darkhast No.59 of 1994 complaining the breach of a decree for perpetual injunction passed in Regular Civil Suit No.214 of 1990, the Executing Court has passed an order detaining the Petitioner in civil prison for a period of 10 days. This is the subject matter of challenge in this Writ Petition.
2. With the assistance of the learned Counsel for the Petitioner, I have gone through order impugned in this Petition. The order of detaining of the Petitioner in civil prison, has been passed in terms of the provisions of Order XXI Rule 32 (1) of the CPC. It is not disputed that the Petitioner did not remain present before the Executing Court inspite of notice. However, the order of detaining a person in civil prison can only be passed under Order XXI Rule 32 (1) of the CPC by way of last resort. There are other modes prescribed regarding providing an opportunity to the Judgment Debtor to obey the decree, to attach the property if any, and then to consider the question of passing an order of detention in civil prison. These modes are not at all considered in the order impugned. Hence, the order impugned cannot be sustained and is required to be quashed and set aside by directing the Executing Court to decide Regular Darkhast No.92 of 1994 afresh.
3. In the result, Writ Petition is allowed. Order dated 12.11.2003 passed by the Civil Judge, Junior Division, Sangola in Regular Darkhast No.59 of 1994 is hereby quashed and set aside. The matter is remanded back to the Executing Court to decide Regular Darkhast afresh in accordance with law keeping in view the observations made by this Court. The Petitioner is granted liberty to file his defence before the executing Court.