Justice S. B. Pd. Singh sets aside order allowing substitution petition by Sub Judge I, Munger in a Title Suit of 2017

Binod Rani Agrawal & Ors. vs. Smt Rinki Kumari @ Rinki Devi & Ors. (2026), Patna High Court's Justice S. B. Pd. Singh delivered a 4-page long judgement dated January 21, 2026, wherein, he set aside order allowing substitution petition by Sub Judge I, Munger in a Title Suit of 2017. The Civil Miscellaneous was preferred for setting aside the order dated July 19, 2023, passed in Title Suit No. 77 of 2017 filed by the plaintiff/respondent under Order XXII Rule 4 of the Code of Civil Procedure without application of judicial mind. He concluded:"6. From perusal of death certificate issued by IGIMS, patna, it clearly shows that Awadhesh Kumar Das has already died on 27.09.2015 while the suit was filed in the year 2017 being Case No - Title Suit No. 77 of 2017. So, obviously, the case was filed against the dead person i.e. Awadhesh Kumar Das. So, impugned order is contrary to the specific statutory provision of law. 7. Hence, the impugned order dated 19.07.2023, passed in Title Suit No. 77 of 2017 is set aside in view of the above provision of C.P.C. as well as judgment passed in the case of Cuttak Municipality vs. Shyamsundar Behera [AIR 1977 Orissa 137]. 8. Accordingly, present Civil Misc. No. 1271 of 2024 stands allowed."

As per respondent’s case, the plaintiff/ respondent (mortgagee) asked again and again to Shri Awadhesh Kumar Das (mortgagor) to return the loan amount and take back the suit property but he completely refused and hence, lastly he filed the said Title Suit No. 77 of 2017 for declaration of right title and interest over the suit property. Learned counsel for the petitioners submits that respondent/plaintiff has filed a Title Suit, bearing No. 77 of 2017, in the Court of learned Sub Judge I, Munger regarding the property mortgaged by Shri Awadhesh Kumar Das (since deceased) in favour of respondent by registered mortgaged deed, dated 26.05.2014. 

The counsel for the petitioner submitted that from a plain reading of Order XXII Rule 4 of the Code it clearly transpires that this provision applies only where the death of one of the several defendants, or of the sole defendant, occurs during the pendency of the suit. If a defendant has already expired prior to the institution of the suit, his legal representatives cannot be brought on record under Order XXII Rule 4 CPC. Therefore, in the present case, the substitution petition under Order XXII Rule 4 was not maintainable in law, and the suit itself was liable to be rejected at the very threshold. He placed reliance on the judgment of Orissa High Court, passed in Cuttak Municipality vs. Shyamsundar Behera [AIR 1977 Orissa 137] has held that a suit filed against a dead person is a nullity and no substitution can be made in place of the original defendant who was dead on the date of institution of the suit. In support of his averments that Awadhesh Kumar Das died on 27.09.2015 in Indira Gandhi Institute of Medical Science (IGIMS), Sheikhpura, Patna, he annexed the death certificate issued by IGIMS. 

Brajesh Kumar Singh, Additional District and Sessions Judge accuses Rishi Kant, Principal District and Sessions Judge of interfering in judicial proceedings to save DM, SP of Begusarai from contempt

Brajesh Kumar Singh, an Additional District and Sessions Judge, Begusarai has passed an order stating that Rishi Kant, the Principal District and Sessions Judge, Begusarai of interfering in judicial proceedings to save DM and SP of Begusarai from contempt. In an order passed on November 17, Judge Singh has stated that Judge Kant abruptly recalled an execution case from his court, without any application from the parties or any report from him, after he recommended contempt proceedings against the District Magistrate (DM) and Superintendent of Police (SP) of Begusarai for failing to comply with court directions. 

Singh is the District and Additional Sessions Judge, Begusarai since February 1, 2025. He has done his Masters in Law. He will retire in February 2041. Singh has accused Rishi Kant, the Principal District and Sessions Judge of interfering in an execution petition against the DM and SP. Kant is Principal District and Sessions Judge, Begusarai since March 5, 2025. He has done his Graduation in Law. He will retire in December 2037. 

The execution petition in question is related to a compensation amount of ₹11 lakh, awarded in August 2023 to the guardian of a petitioner who died in an accident caused by a police vehicle. The authorities allegedly failed to release the compensation, prompting the judge to consider contempt action. Judge Singh was hearing the matter since early 2024 before the astounding recall order without perusal of the case file in question. 

Judge Singh stated that Judge Kant passed the recall order “hastily” even though the case file was still with his court. Citing provision under Section 24 of the Civil Procedure Code (CPC), Singh said that its provision does not allow transfers at the whims of a senior judge. His order reads: “Every such order of transfer must be based on sound judicial principles… The Principal District and Sessions Judge has no absolute power to transfer the case when the transferor court is at the stage of concluding the proceedings,”  He observed:“Why only poor should be subjected to coercive orders… when mighty bureaucrats are made absolutely immune from judicial process in the lower judiciary.” 

In Manish Kumar vs. The State of Bihar through D.M., Begusarai & Ors. (2025), Brajesh Kumar Singh, Additional Sessions Judge, the Presiding Judge in the Court of District Judge-III, Begusarai passed an order dated November 17, 2025. The order reads:"Vide order dated 14.10.2025 against D.M., Begusarai and S.P., Begusarai, the contempt proceeding was recommended, and for this purpose, a separate miscellaneous case was registered. Vide the same order, show-causes from D.M., Begusarai and S.P., Begusarai were invited, however, till date, no show cause has been filed on their behalf. This court has given several opportunities to both D.M., Begusarai and S.P., Begusarai for receiving their respective replies as condition precedent to start contempt against them, but they have let the opportunities go. On behalf of D.M. Begusarai, neither show-cause nor response was filed. However, a response on behalf of S.P., Begusarai to the order dated 14.10.2025 has been filed. It is relevant to point out that, in para no-08 at page no-04 of his response, the S.P., Begusarai reserved his right to file his detailed show-cause before the Hon'ble High Court, Patna itself. It appears that D.M., Begusarai and S.P., Begusarai are willing to file their respective show-causes in the Hon'ble High Court, Patna directly. Hence, this court finds fit to direct the O.C to send the extracts of miscellaneous case (with the relevant orders) to the Registrar General, Hon'ble High Court, Patna with the recommendation to initiate contempt against the S.P., Begusarai and D.M., Begusarai in view of the order of this court dated 14.10.2025. Put up this case on 26-11-2025." 

The order reads:"Later on, an order no-488 (Misc.) dated 15.11.2025 of Ld. Principal District and Sessions Judge, Begusrai was communicated. The copy of the order is shown to me. In the order, the Ld. Principal District and Sessions Judge, Begusarai has been pleased to recall the present execution case no-01/2024 for keeping the same in his peronal file, for hearing and disposal. Though, this court has no vested interest in the matter, and is willing to send the records of the case to Ld. Principal District and Sessions Judge, Begusarai, and accordingly, O.C is directed to hand over the entire case records to the court of Ld. Principal District and Sessions Judge, Begusarai for keeping the records in his personal file, yet this court notes that the case is recalled by the Ld. Principal District and Sessions Judge, Begusarai without any application at the behest of either party or without report of the court." 

The order observed: "More importantly, Ld. Principal District and Sessions Judge, Begusarai has passed the aforesaid hasty order of transfer without even looking at the records, may be on the basis of his personal knowledge, because the entire file is pending in the court of District Judge-III." The Ld. Principal District and Sessions Judge, Begusarai has palpably passed the order in the interest of so-called 'administration', however, section 24 of CPC is conspicuously silent about transfer on the ground of so-called 'administration'. It is trite that power of the Principal District and Sessions Judge u/s-24 of the CPC can not be exercised at his whims and fancies'. It is well established that every such order of transfer must be based on sound judicial priniciples, which principles are conspicuously absent in the present order of transfer. The alternative phrase "of its own motion" used in section 24 of the CPC cannot be equated with the pleasure' of Principal District and Sessions Judge. Ld. Principal District and Sessions Judge, Begusarai has no absolute power to transfer alternative phrase "of its own motion" used in section 24 of the CPC cannot be equated with 'the pleasure' of Principal District and Sessions Judge. Ld. Principal District and Sessions Judge, Begusarai has no absolute power to transfer the case when the transferor court is at the stage of concluding the proceedings in that case. By transferring the case at the concluding-stage from this court, Ld. Principal District and Sessions Judge has violated the principle of judicial independence', the very judicial principle which every judge has sworn protect."

The order concluded: "By passing the order of transfer, Ld. Principal District and Sessions Judge has made the judiciary a matter of laughing stocks in as much as the judges of sub-ordinate judiciary appear to be only paper tigers, having order passed by them has got binding effect on mighty and powerful bureaucrats. Truely speaking, my morale is badly dampened by seeing as to how the water is thrown at the entire efforts of this court by sheer this transfer. No judge would ever dare to pass order against the mighty bureaucrats like D.Ms and S.Ps, and then why only poor should be subjected to coercive orders of the court for non- compliance, when mighty bureaucrats are made absolutely immune from judicial process in the lower judiciary. In my opinion, the transfer by Ld. Principal District and Sessions Judge, Begusarai was made to shield the D.M., Begusarai and S.P, Begusarai from contempt proceeding. It is relevant to point out that the incumbent Ld. Principal District and Sessions Judge, Begusarai has interfered in the judicial process in this case on earlier occasions also, which fact is duly recorded in the order of this count dated 23.09.2025. Nevertheless, let the justice be done in this case. am withdrawing from this case as mandated by the aforesaid transfer by Ld. Principal District and Sessions Judge, Begusarai, but I have no regrets."

The principles with respect to the transfer of case under Section 24 CPC have been dealt with by the Supreme Court in Kulwinder Kaur vs. Kandi Friends Education Trust and others (2008) 3 SCC 659. It has held: "At the same time, however, an order of transfer must reflect application of mind by the court and the circumstances which weighed in taking the action…………..”

The observation of the Supreme Court demonstrates that Judge Kant seemed to have erred in passing order of transfer with out application of mind because the file of the case has not even reached him.    

Suit for negative declaration that defendant is not legally married to plaintiff is maintainable: Bombay High Court

In Haridas Mahadev Sasne vs. Tejasvini Krushna Bhosale (2025), Bombay High Court's Justice N.  J. Jamadar held that "a suit for a negative declaration that the defendant is not legally married to the plaintiff is maintainable Consequently, the civil Judge can not be said to have committed any error in rejecting the application for rejection of the plaint" and rejected the civil revision application in its order dated March 6, 2025. The case was filed on February, 6, 2024. 

It is a case wherein the plaintiff, the complainant sought a declaration that no marriage occurred between her and the defendant, who falsely claimed marital status. 

The Court observed: the submission that a suit for mere declaration without any consequential relief, is not maintainable also does not carry much conviction. In a case of the present nature, the declaration about the marital status itself assumes the character of a substantive relief. The plaintiff in such a case is not required to seek any further relief. The declaration of marital status bears upon the rights and obligations of the parties and also serves the purpose of vindication of legal character."

A pivotal question of law which arose for consideration, in the revision application, was “whether a suit for declaration simpliciter that there is no marital relationship between the plaintiff and the defendant, is maintainable” ? 

The plaintiff and the defendant were residents of the same village. They were acquainted with each other. The defendant took undue advantage of the proximity, and falsely claimed that defendant’s marriage was solemnized with the plaintiff on September 21, 2018 at Janjagruti Matrimonial Alliance Center, Chiplun. Asserting that no valid marriage was ever solemnized between the plaintiff and the defendant and the latter was falsely claiming that the plaintiff is the wife of the defendant, the plaintiff instituted a suit for a declaration that no marriage was solemnized between the plaintiff and the defendant on September 21, 2018 or on any other day, at Janjagruit Matrimonail Alliace Center, Chiplun or at any other place. The defendant appeared and resisted the suit. The defendant also filed an application for rejection of the Plaint under Order VII Rule 11 of the Civil Procedure Code asserting that the plaintiff was seeking a negative declaration that no marriage was solemnized between the plaintiff and the defendant. Such a negative declaration cannot be granted under the provisions of Section 34 of the Specific Relief Act 1963. Thus, there was a bar to the Suit seeking negative declaration. Resultantly, the Plaint was liable to be rejected under Order VII Rule 11 of the Code.

The plaintiff resisted the application for rejection of the Plaint contending that if the averments in the plaint are read as a whole, it cannot be said that the plaintiff is seeking a negative declaration. Moreover, the Suit cannot be said to have been instituted under the provisions of Section 34 of the Act of 1963 only. The plaintiff was entitled to seek declaratory relief under Section 9 and Order VII Rule 7 of the Code de hors the provisions contained in Section 34 of the Act of 1963. At any rate, the plaintiff was seeking a declaration as to her status, and, therefore, the purported bar under Section 34 of the Act of 1963 was inapplicable. 

The civil judge was persuaded to reject the application observing that a suit of the present nature for negative declaration was maintainable. The relief sought by the plaintiff was of a substantive nature. Thus, there was no substance in the application. Being aggrieved, the defendant has invoked the revisional jurisdiction.

The counsel for the respondent took the Court through the Plaint, averments in the application for rejection of the Plaint and the reply. He urged

that a person is not entitled to seek a negative declaration under Section 34 of the Act of 1963. It was submitted that the text of Section 34 of the Act of 1963 warrants that the person seeking a declaration must claim to be entitled to any legal character, status or right. A declaration that the plaintiff is not married to the defendant does not

fall within the ambit of the main part of Section 

In the case at hand, the plaintiff is seeking a mere declaration without any consequential relief. Therefore, the proviso to Section 34 of the Act, 1963 precludes the Court from granting a mere declaration. In these circumstances, according to counsel for the respondent a declaratory suit of the present nature is clearly barred. He urged that though there is a conflict of views of the different High Courts on the aspect of maintainability of such a suit, a Division Bench Judgment of Karnataka High Court in the case of Bhuvaneshwari vs . Revappa Alias Rani Siddaramappa Kolli (Since Deceased) by L.Rs 2009 SCC OnLine Kar 738 has categorically ruled that a relief seeking negative declaration as to marriage is beyond the scope of the provisions contained in Section 34 of the Act of 1963. The decision to the contrary by Calcutta High Court in the case of Joyita Saha vs. Rajesh Kumar Pande, AIR 2000 Calcutta 109 does not adequately deal with this aspect. Therefore, the decision in the case of Bhuvaneshwari case commands more persuasive value.

The counsel for the respondent, submitted that the declaration sought in the instant case cannot be said to be negative in character. Section 34 of the Act of 1963 is not the sole source of a declaratory relief. Section 9 of the Code is expansive enough to include a Suit for declaration that the defendant, who falsely claims to be married to the plaintiff, is not the husband of the plaintiff. Therefore, the very premise of the application for the rejection of the Plaint on the count that Section 34 of the Act of 1963 bars a Suit of the present nature, is flawed. He also submitted that the judgment of the Karnataka High Court can not be construed to lay down the ratio that a Suit for a declaration that the plaintiff is not married to the defendant cannot be instituted. The controversy in the case before the Karnataka High Court was regarding the maintainability of a Suit seeking a declaration that the defendant was not the wife of the plaintiff, before the Family Court. Adverting to the provisions contained in Section 7 of the Family Courts Act, 1984 the Karnataka High Court ruled that a relief in the nature of a negative declaration in respect of a marriage does not fall within the ambit of the provisions contained in the Explanation to Section 7 of the Family Courts Act, 1984. 

He further submitted that the Division Bench of Karnataka High Court has made a passing observation that the relief of the instant nature is beyond the scope of section 34 of the Act, 1963. The Court has not considered the issue elaborately. The provisions and precedents which govern the field have not been considered. Thus, the said decision can be said to be a precedent sub silentio. To this end, reliance was placed on a Supreme Court judgment in the case of A-One Granites vs. State of U.P. and Ors. (2001) 3 SCC 537.

According to him, as a matter of principle, it cannot be said that a suit for negative declaration is not at all maintainable. The Court essentially deals with the legal character, right or status. The form of declaration is not material. He placed reliance on a judgment of Andhra Pradesh High Court in the case of Narhar Raj (died) by L.Rs and Ors. vs. Tirupathybibi and Anr. 2002 SCC OnLine AP 1032. wherein the Andhra Pradesh High Court held that a suit for a relief of negative declaration is maintainable.

The Court took note of the nature and contours of a declaratory decree. A declaratory decree, in effect, cements and strengthens the legal character, right or status a person asserts, and denied by another. A declaration as to legal character or status protects from adverse attacks on title to such right, character or status and obviates further litigation by putting a judicial imprimatur over such right, character or status. Ordinarily a declaratory relief is accompanied by the consequential relief. However, it is not inconceivable that, in a given case, declaration itself assumes the character of a substantive relief. Undoubtedly, in a vast majority of cases, declaratory relief is sought under section 34 of the Act, 1963. However, that is not the sole repository of the power to grant a declaration. A civil Court in exercise of its ordinary civil jurisdiction, referable to section 9 of the Code, may grant a declaration dehors the provisions contained in section 34 of the Act, 1963.

In order to appreciate the submissions of the  counsel for the applicant, the provisions of section 34 of the Specific Relief Act, 1963 was cited. It reads: "Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its

discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

A bare perusal of the provision indicates that any person entitled to any legal character or any right in relation to any property, may sue for declaration. The words “character” and “property” are of expansive nature. To illustrate,

“character” may include the status and relation qua another person. The character may encompass within its scope an office, privilege and position with regard to a given entity. All attributes which the law vests in a person on account of an office, position, status or relation may fall within the ambit of the term “legal character”.

Secondly, the declaration can be sought against any person denying the first person’s title to such character or right, and also against any person interested to deny first person’s title to such legal

character or right.

Thirdly, the proviso to section 34, precludes the Court from granting a declaration simpliciter where the plaintiff though able to seek further consequential relief, than a mere declaration omits to do so. The proviso thus warrants a further inquiry whether in the facts of the case, the plaintiff is able to seek further consequential relief and yet omitted to do so. Obliviously the necessity and adequacy of consequential relief, in addition to declaration, would hinge upon the facts and circumstances of each case.

The declaration under section 34 of the Act, 1963 is, however, not exhaustive of the power of the civil Court to grant declaratory reliefs. A profitable reference, in this context, can be made to a judgment of the Supreme Court in the case of Vemareddi Ramaraghava Reddy and Ors. vs. Konduru Seshu Reddy and Ors. AIR 1967 Supreme Court 436 wherein the Supreme Court traced the development of the law with regard to declaratory action and enunciated that section 42 of the Specific Relief Act, 1877 (Old), was not exhaustive of cases in which a declaratory decree may be made and the civil Courts have the power to grant such declaration independent

thereof. The observation in the paragraph 11 reads: "In our opinion, s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the

plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of S. 42 of the Specific Relief Act."

The Supreme Court further expounded the law in the case of M/s. Supreme General Films Exchange Ltd. vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors. AIR 1975 Supreme Court 1810.  The Court enunciated that section 42 of the Specific Relief Act, 1877 merely gives statutory recognition to well recognized type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42.

The edifice of the submission of counsel for the applicant is that section 34 of the Act, 1963, bars the declaration, as sought in the instant case, and, therefore, the plaint deserves to be rejected stands dismantled. A civil Court is competent to grant a declaration regarding the marital status dehors the provisions contained in section 34 of the Act, 1963.

The Court examined as to whether a negative declaration as to marital status can be granted. First and foremost, from the phraseology of section 34 of the Act, 1963, an inexorable inference can not be drawn that such a negative declaration, cannot be made. The term legal character is of wide amplitude. The ‘marital status’ as a personal attribute and qua a particular person, squarely falls within the ambit of legal character. If a person can seek a declaration that he is legally weeded to the defendant, a fortiori , there does not seem any impediment in seeking a declaration that he is not married to the defendant. The negative form

of declaration is nothing but assertion of a particular positive marital status. If the defendant denies or is interested in denying such marital status asserted by the plaintiff, a declaration can be legitimately sought under the provisions of section 34 of the Act, 1963 itself.

The Court observed: "there seems to be a cleavage in the judicial opinion of the High Courts on the tenability of such a suit for negative declaration as to marital status." In the case of Bhuvaneshwari which constituted the sheet anchor of submission of counsel of the applicant, a Division Bench of Karnataka High Court while deciding the question as to whether a suit seeking declaration that the defendant is not the wife of the plaintiff is maintainable before the Family Court, after considering the provisions contained in section 7 of the Family Courts Act, 1984 which confers the jurisdiction upon a Family Court, held that the relief in the nature of negative declaration in respect of a marriage, is not tenable before the Family Court. After recording this view, the Division Bench ventured to add that the relief of such nature was even beyond the scope of section 34 of the Act, 1963. The observations in paragraph 22 of the judgment are relevant and hence extracted. It reads:-"In fact, we find a relief of this nature is even beyond the scope of Section 34 of the Specific Relief Act as a negative declaratory relief to declare that the marriage had never taken place, is not one that can come within scope of Section 34 of the Specific' Relief Act. Accordingly, when it is a relief that cannot be granted in law, there is no way the civil court can grant a declaratory relief."

A Division Bench of Calcutta High Court, in the case of Joyita Saha case ruled that since the marriage itself was denied and the prayer was made in the suit for a declaration that there was no marriage between the parties, the suit as framed was quite maintainable in law. The controversy, however, seems to have been settled by a decision of the Supreme Court in the case of Balram Yadav vs. Fulmaniya Yadav (2016) 13 SCC 308. In this case, the High Court of Chattisgarh had allowed an appeal against a decree passed by the Family Court to the effect that the respondent was not the legally married wife, on the ground that a negative declaration was outside the jurisdiction of the Family Court. Referring to the provisions contained in sections 7 and 8 of the Family Court Act, 1984 the Supreme Court held that in case there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative or negative relief. What is important is a declaration regarding marital status. 

The observations in paragraph 7 are material and hence it is extracted. It reads: "Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws."

The counsel of the applicant attempted to distinguish this judgment by canvassing a submission that the ratio in this decision is restricted to the Family Court, and that a civil Court would not be empowered to grant negative declaration as to marital status. 

Bombay High Court observed: "The submission simply does not merit countenance." The High Court underlined that "the civil Court has power to grant declaratory relief even independently of section 34 of the Act, 1963. The principle that the form of declaration does not matter and it is the status or legal character with regard to which the Court makes the declaration that is of substance, applies with even greater force to the proceedings before the civil Court which has inherent jurisdiction to decide all suits of civil nature unless their cognizance is either expressly or impliedly barred."

 

Disobedience of decree of injunction by judgment-debtor invites imprisonment or attachment of property or both

In the Bhudev Mallick Alias Bhudeb Mallick vs. Ranajit Ghoshal 2025 INSC 175, while dealing with compliance with Order XXI Rule 32 of CIvil Procedure Code (CPC) and jurisdictional error, the Supreme Court's division bench of Justices J. B. Pardiwala and H. Mahadevan on January 17,  2025 pronounced the imprisonment of judgment-debtor for disobedience of decree of injunction by judgment-debtor. 

The appeal against the judgement dated September 23, 2019 of Justice Sabyasachi Bhattacharya of Calcutta High Court was filed on January 28,  2020 was allowed.

The concluding paragraph of the 42-page long judgement reads:"The Registry is directed to circulate one copy each of this judgment to each of the High Courts with a further request that each of the High Courts shall circulate one copy of this judgment in their respective District Courts".

At para 44-45, the Court observed:"Imprisonment of a judgment-debtor is no doubt a drastic step and would prevent him from moving anywhere he likes, but once it is proved that he had wilfully and with impunity disobeyed an order of injunction, the court owes it to itself to make the judgment-debtor realise that it does not pay to defy a decree of a court. Failure to exercise this power in appropriate cases might verily undermine the respect for judicial institutions in the eyes of litigants. The court's power under Order 21, Rule 32 is no more than a procedural aid to the harried decree-holder. Where the judgment-debtor disobeys a decree of injunction, he can be dealt with under this rule by his imprisonment or by attachment of his property or by both. But the court has to record a finding that the judgment-debtor wilfully disobeyed or failed to comply with the decree in spite of opportunity afforded to him. Absence of such finding is a serious infirmity vitiating the order". 

In its judgement, the Supreme Court observed:"we would like to put a question to the executing court as to why it did not deem fit to afford one opportunity of hearing to the appellants herein? What would have happened if the executing court would have permitted the appellants herein to place their written objections on record? 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. This aspect unfortunately has been overlooked even by the High Court while affirming the order passed by the executing court. The High Court itself could have remanded the matter to the executing court with a view to give an opportunity of hear- ing to the appellants herein. The supervisory jurisdiction vested in the High Court under Article 227 of the Constitution is meant to take care of such situations like the one on hand."

It concluded: "In the overall view of the matter, we are convinced that the impugned order passed by the High Court is unsustainable in law. In such circumstances, we set aside the order passed by the High Court and also that of the executing court."

It clarified that "it shall be open for the respon- dents herein (decree-holders) to file a fresh application if at all there is any interference at the instance of the appellants herein (judgment-debtors) in so far as their possession of the property in question is concerned. If any such fresh application is filed, the executing court shall look into the same strictly keeping in mind the observations made by this Court in this or- der and decide the same on its own merits."

This appeal arose from the order passed by the Calcutta High Court dated September 23, 2019 by which the High Court rejected the CO filed by the appellants (judgment debtors) and thereby affirmed the order passed by the Executing Court dated September 4, 2019 in Title Execution Case arising out of Title Suit. The appellants are the judgment debtors and the respondents are the decree holders.

It all began in 1965 when the predecessor-in-interest of the decree holders instituted a Title Suit for confirmation of possession and in the alternative for recovery of possession based on title to the suit land and for permanent injunction. The respondents are the legal heirs of the original plaintiffs of the Title Suit of 1965. The Subordinate Judge 2nd Court, Hooghly decreed the suit by the judgment and decree dated June 26, 1976. 

The operative part of the decree reads:

“Considering the facts, circumstances and evidence on record I, therefore, hold that the plaintiff has been able to establish his title to the suit properties and possession follows title and the defendant has failed to prove his alleged title. So he had no occasion to disturb plaintiffs possession of the suit properties. The plaintiff is therefore, entitled to have a declaration of title and confirmation of possession and injunction with respect to peaceful possession of the suit properties against the defendants. The suit is also maintainable, issue nos.2 to 5 are thus disposed of with a remarks that there is no need for consideration of alternative prayer for recovery of possession in the aforesaid context." 

With regard to Issue No.6, the order reads:"In the result the suit succeeds.Court fees paid upon the plaint sufficient. Hence, ORDERED: "That the suit is decreed on contest with costs against defendant no. 1 Ka to Jha and 2 and without contest and without cost against the rest. Plaintiff's title with respect to Ka and Kha schedule is ereby declared and his possession thereof is hereby confirmed. The defendants are permanently restrained from disturbing possession of the plaintiff of the suit properties. The prayer for damage etc. is rejected under the present frame of the suit.”

Supreme Court recorded:"The appellants herein were permanently restrained from disturbing the peaceful possession of the respondents herein in so far as the suit property is concerned."

Being dissatisfied with the judgment and decree dated June 20, 1976, the appellants challenged the same by filing Title Appeal in 1976.

The Supreme Court recorded: "The record does not reveal in what manner the Title Appeal came to be disposed of, however, according to the appellants, the same was disposed of by the Appellate Court vide order dated 10.06.1980. Sometime in the year 2017, i.e., after a period of almost 40 years, the respondents herein filed an Execution Case seeking to execute the decree dated 26.06.1976 referred to above on the ground that the appellants herein were disturbing & creating trouble in their peaceful enjoyment of the property and thereby alleged that the appellants have committed breach of the decree of permanent injunction. The same came to be registered as Title Execution Case No. 1 of 2017. The appellants were served with the summons of the suit execution case. The application filed by the respondents herein (decree holders) which came to be registered as Execution Case No. 1of 2017 concerning title Suit No. 25/1965."

The application filed in the Court of Civil Judge Senior Division, Arambagh, Hooghly reads:"The defendants/debtors wilfully defying the Permanent Restraining order of the Court and creating obstacles to the peaceful possession of the plaintiff decree holder's property by the heirs of the plaintiff decree holder. Therefore, the instant petition is being field with the prayer that the Defendants/Debtors must be stopped from creating obstacles to the peaceful possession of the property by the heirs of the decree holders and the order/direction may also kindly be issued for sending the Defendants/Debtors to Civil Jail and their property should also be attached and auctioned so that the debtors cannot create obstacles on possession of the property of plaintiff 'decree holder's heirs by breaking the perpetual restraining order of the trial court and court assistance is required to attack and auction their property and to send them to Civil Jail.” 

The Supreme Court records: "It is the case of the appellants that although the summons was received by them yet due to non-availability of old records they were not in a position to appear before the court concerned and later learned that the execution case was fixed by the court for ex parte disposal. On 12.12.2018, the appellants herein filed their written objections to the execution case along with a petition requesting to accept the written objections & give them an opportunity of hearing."

The written objections lodged in writing by the appellant (judgment debtors) reads: 

“Objection against Application for Execution filed by the Decree Holders

1. That the application for Execution flied by the Decree Holders with respect to the original suit is not maintainable.

2. That the application Is vague and Indistinct. The decree holders in their petition has not stated the schedule of property and hence It is ambiguous and since the petition is handwritten it is ineligible to a huge extent and should be rejected.

3. That the properties described in the schedule of the plaint of the original suit was purchased by the predecessor of the Judgement debtors and at no point of time was possessed by the decree holders or their predecessors. The decree holders have obtained the judgement and decree on 26.06.1976 but even then they did not possess the suit property. The properties were all along in possession of the judgement debtors which was unaffected and even after procuring the alleged decree from the Ld. Lower Court the decree holders did not possess the same till today. Thus after such a long time the decree holders could not pray for relief for alleged violation of any order of injunction.

4. That after obtaining the alleged judgement and decree on 26.06.1976 the decree holders have filed several cases before the Ld. Executive Magistrate and in almost every case the possession of the Judgement debtors have been confirmed.

5. That the decree holders in order to snatch possession of the suit properties from the judgement debtors have filed the instant petition at this belated stage knowing very well that they never possessed the property. Moreover the decree holders in several applications have stated that they did not have possession over the suit properties.

6. That unless the truth regarding the possession comes before the Ld. Court the Instant execution is not maintainable.

7.  That the decree holders are putting forth claim on the basis of erroneous record of rights whereas the judgement debtors have come to own the suit properties by virtue of purchase. The judgement debtors have much better title than the decree holders which can be ascertained by seeking evidence.

8. That since the, decree holders did not claim possession over the suit properties the judgement debtors have been openly, as of their own right, uninterruptedly, without any protest from the decree holders have been possessing the suit tank since purchase and later on since 10.06.1980 i.e. from the date of disposal of the appeal case. The decree holders are thus stopped from putting forth illegal claim over the suit properties. Without taking due process of law the Ld. Court and in absence of due proceeding the Ld. Court could not pass any order in this case.

9. That the Judgement debtors. will be put to Irreparable loss and injury if the execution application filed by the decree holders is entertained.

10. That since the petition is illegible and since the order in the original suit has been passed more than 40 years ago the judgement debtors crave leave to file additional written objection if found necessary for proper adjudication of this case.

In the above circumstances the judgement debtor pray that the Ld. Court be kind enough to reject the execution application flied oy the decree holders. 

On January 21, 2019, the Executing Court declined to take the written objections on record saying that the same were not maintainable. The court fixed the matter for final arguments on 25.01.2019. The appellants being aggrieved by the order dated 21.09.2019 referred to above, preferred a Revision Application being C.O. No. 1120 of 2019 before the High Court. The High Court vide order dated 27.03.2019 admitted the Revision Application and stayed all further proceedings of the Title Execution Case No. 1 of 2017.  

Later the appellants herein filed an application dated July 26, 2019 in the High Court seeking extension of the interim order dated March 27, 2019 referred to above and accordingly informed the trial court about the pendency of the Revision Application of 2019 for extension of the interim order. 

However, on September 4, 2019, the Civil Judge Arambagh proceeded to pass an Order 21 in Title Execution Case against appellants herein by allowing the execution case ex parte. The Civil Judge ordered that the appellants herein (judgment debtors) shall be arrested and detained in civil prison for a period of 30 days and their property be attached in accordance with law. 

The order passed by the Civil Judge reads: “Order No.21 dated 04.09.2019. The plaintiffs file hazira. The fact of the case in short is that this is a case for execution of permanent injunction passed by the Ld. Second Court of the Subordinate Judge, Hooghly, in T.S. No.25 of 1965. The plaintiffs of the original suit got the decree of permanent injunction in the form of permanent restrainment of the defendant/judgment debtors from disturbing possession of the plaintiffs in the suit property as well as the property over which the execution is prayed for. The present petitioners are the legal heirs of the deceased Chota Chandicharan Ghoshal i.e. the original plaintiff of the said T.S. 25 of 1965. The present execution case, prays in made by execution application dated 25.11.2017, praying for execution of contested judgment and decree in T.S. no.25/1965, dated 26.06.1976, of the Ld. Second Court of the. Subordinate Judge, Hoogly. It is averred in the application that the Jdrs. are willfully, in violation of the decree, disturbing the peaceful possession of the Dhrs upon decretal property and thus it is necessary to execute the same by relief of Civil Jail as well as attachment and sale of the properties of Jdrs. In argument Ld. Counsel for the Dhr Submits that they were granted a contested decree of declaration and permanent injunction, but the Jdrs are willfully violating the same, and which is apparent from the evidence on record and thus the decree maybe put into execution by putting the Jdrs in Civil Jail and by attachment of their properties. In this regard, the Ld. Counsel cited the landmark judgment passed by Ld. Punjab Haryana High court on 9th October, 1979 and which is published in AIR 1980 P and H. The impugned decree filed along with the execution application shows that the present applicants are Dhrs and that the defendants of the suit are Jdrs. The same was decreed on contest on 26.06.1965 declaring the title of the plaintiff/Dhrs in respect of the suit property and confirming their possession. The defendants/Jdrs were restrained by way of permanent injunction from disturbing possession of the plaintiff m the suit property.

It is noted that the Jdrs had appeared in such case and have knowledge of all averments reports. Moreover, the decree was contested decree. The police report shows that despite the decree, the Jdrs are claiming forceful possession. In Iyyam Perumal Vs Chinna Gounder, (1984) it was observed that direction of arrest may be restored to if there is adequatebproof of refusal to comply with a decree inspite of Jdrs possessing sufficient means to satisfy the same. Thus, there are enough circumstances to put the decree into execution as prayed for. Hence, it is, ORDER

That the execution case is allowed ex-parte and the Judgment Debtors are directed to be arrested and detained in civil prison for a period of thirty days and also to attach judgment Debtors properties as per the provision of law.  Thus this T.Ex.Case is disposed of.”

The appellants challenged the order passed by the Civil Judge referred to above, challenged the same by filing Revision Application of 2019 before the High Court invoking its supervisory jurisdiction under Article 227 of the Constitution. The High Court vide its impugned order dated September 23, 2019 rejected the revision application and thereby affirmed the order passed by the Civil Judge. 

The High Court in its impugned order observed thus: “The present challenge is directed at the behest of the judgment-debtors of a decree for permanent injunction. Learned counsel appearing for the petitioners argues that in view of the application filed for arrest and detention in civil prison of the petitioners, the same ought to have been - governed under Order XXI Rule 11A of the Code of Civil Procedure, which, it is argued, contemplates an affidavit being filed, stating the ground on which arrest is applied for. In the absence of such an affidavit in the present case, the executing court acted without jurisdiction in allowing the execution case.  The next contention of learned counsel for the petitioners is that the petitioners' written objection to the application for execution was not accepted due to delay, which was challenged in a civil revisional application before this Court. Although the petitioners prayed for stay of the execution case in view of pendency of an application for extension of stay granted in the previous revisional application, the executing court acted in hot haste in passing the impugned order, which was thus vitiated on such ground as well. The learned counsel appearing for the decree-Holders, on the other hand, points out that the previous revisional application challenging the non-acceptance of written objection by the present petitioners was dismissed by a co-ordinate bench on the ground that the same had become infructuous in view of passing of the order impugned herein. As such, there is no challenge existing at present to the order refusing to accept the written objection of the petitioner. In such view of the matter, the argument, that the petitioner did not get any opportunity to file written 'objection, has been rendered academic since there is no existing challenge pending against the same. Moreover, a plain reading of Rule 11A of Order XXI of the Code suggests that the same envisages an application being made for the arrest and detention in prison of the judgment-debtors, stating the grounds on which arrest is applied for, or be accompanied by an affidavit stating such grounds. The language of Order XXI Rule 11A of the Code suggests clearly that the grounds for arrest and detention may be contained either in the application or in the accompanying affidavit. In the present case, the execution application itself contained the ground, sufficient to entitle the executing court to pass an order of execution of the decree for permanent injunction. As such, no jurisdictional error was committed by the executing court in passing the impugned order. Accordingly, C.O. No. 3283 of 2019 is dismissed on contest. There will be no order as to costs. At this juncture, learned counsel for the petitioners prays for stay of the instant order for a limited period. However, since, in the opinion of this Court, no question of law of substantial importance is involved in this case, the prayer for such stay is refused.”

In such circumstances, the appellants (judgment debtors) reached the Supreme Court with the present appeal. 

On behalf of the appellants (judgement debtors), Joydeep Mukherjee, the counsel submitted that the High Court committed egregious error in passing the impugned order. He submitted that

the execution petition itself was not maintainable at the instance of the respondents after a lapse of almost 40 years from the date of passing of the decree of declaration and permanent injunction. He submitted that the Civil Judge committed a serious error in directing arrest of the appellants herein and their detention in civil prison for a period of 30 days with further order to attach their property.

The main bone of contention canvassed on behalf of the appellants herein is that the respondents had not filed any petition along with an affidavit as the same is a mandatory requirement under Order XXI Rule 11-A of the Code of Civil Procedure, 1908. He further submitted that the aforesaid aspect came to be overlooked even by the High Court while rejecting the revision application. 

The counsel submitted that the High Court should have at least permitted the appellants herein to file their written objections to the execution case. The learned counsel prayed that there being merit in his appeal the same may be allowed and the impugned order passed by the High Court and also the one passed by the civil court in execution case be set aside. 

On behalf of the respondents (decree holders), 

Lalita Kaushik, the counsel submitted that no error not to speak of any error of law could be said to have been bcommitted by the High Court in passing the impugned order. She submitted that the contention on behalf of the appellants that the execution petition could not have been filed after 40 years from the date of the original decree is without any merit. She submitted that once there is a decree of permanent injunction having attained finality; if thereafter at any point of time, the possession of the decree holders is sought to be disturbed then in such circumstances it is always open for the decree holder to seek appropriate relief from the court in accordance with law. She prayed that there being no merit in this appeal, the same may be dismissed. 

The fact remains freezing assets and salary should be a last resort. The liberty should not be frozen even for a temporary time.