# Bhudev Mallick Alias Bhudeb Mallick & Anr v. Ranajit Ghoshal & Ors

- **Citation:** 2025 INSC 175
- **Court:** Supreme Court of India
- **Decided:** 2025-01-17
- **Case number:** Civil Appeal No. 2248 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhudev-mallick-alias-bhudeb-mallick-anr-v-ranajit-ghoshal-ors-38138
- **Pages:** 45

## Headnote

A suit for confirmation of possession or in the alternative recovery of
possession and injunction was filed by the predecessor in interest
of the Respondents against the predecessor in interest of the
Appellants. The suit was decreed and 40 years later, Execution
Application was filed claiming breach of decree of permanent
injunction. When the written objections of the Appellants were not
accepted to the same by the Trial Court, a Revision Application was
filed before High court; During its pendency, Trial Court allowed the
Execution Application ex-parte and ordered arrest and detention of
Appellants in civil prison for a period of 30 days and attachment
of their property in accordance with law. Against this, a Revision
Application was filed by appellants before the High Court. That
was dismissed holding that there was no jurisdictional error in the
order of the executing court.
The issues before the Hon'ble Supreme Court are as to whether
the Execution Application is belated; whether the Courts have
applied correct procedure to come to their decisions; and what
constitutes jurisdictional error.
Headnotes†
Sections 51 and 58 of the Code of Civil Procedure, 1908 - To
be read harmoniously:
Held: Section 51 defines the jurisdiction and power of the court to
enforce execution and enumerates modes by which the court may
order execution of a decree according to the nature of relief granted
in favour of a decree-holder - Proviso to Section 51 as inserted
by the Code of Civil Procedure (Amendment) Act, 1936 (Act 21 of
1936) limited the grounds on which a judgment-debtor could be
arrested or detained - Section 58 fixes the period for which the
judgment-debtor can be detained in a civil prison - Sections 51
and 58 should be read together. [Paras 19, 22, 24, 33]
[2025] 1 S.C.R.
1599
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
Order XXI Rule 32 of the Code of Civil Procedure, 1908 -
Explained:
Held: The Rule 32 in its sub-rules: (1) States that where a decree
is for specific performance of a contract, or for an injunction, and
the judgment-debtor willfully disobeys such decree, it may be
executed by attachment of property of the judgment-debtor or
by his detention, or by both; (2) Declares that where in a decree
for specific performance or for injunction, the judgment-debtor is
a corporation, it may be enforced by attachment of the property
of the corporation, or with the leave of the court by detention of
the directors or other principal officers or by both, attachment and
detention; (3) Provides for sale of attached property and payment
of the sale-proceeds to the decree- holder where the attachment
remains in force for six months and the judgment debtor fails to obey
the decree; (4) Deals with cases where the judgment debtor obeys
the decree or the decree-holder commits default; (5) Empowers
the executing court to take appropriate action for enforcing the
decree at the cost of the judgment-debtor who willfully disobeys
such decree; and the Explanation clarifies that the expression "the
act required to be done" covers prohibitory as also mandatory
injunctions. [Paras 26-31]
Order XXI Rule 11A Code of Civil Procedure, 1908 examined
in light of Section 51:
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 per

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[2025] 1 S.C.R. 1598 : 2025 INSC 175
Bhudev Mallick Alias Bhudeb Mallick & Anr.
v.
Ranajit Ghoshal & Ors.
(Civil Appeal No. 2248 of 2025)
17 January 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
A suit for confirmation of possession or in the alternative recovery of
possession and injunction was filed by the predecessor in interest
of the Respondents against the predecessor in interest of the
Appellants. The suit was decreed and 40 years later, Execution
Application was filed claiming breach of decree of permanent
injunction. When the written objections of the Appellants were not
accepted to the same by the Trial Court, a Revision Application was
filed before High court; During its pendency, Trial Court allowed the
Execution Application ex-parte and ordered arrest and detention of
Appellants in civil prison for a period of 30 days and attachment
of their property in accordance with law. Against this, a Revision
Application was filed by appellants before the High Court. That
was dismissed holding that there was no jurisdictional error in the
order of the executing court.
The issues before the Hon'ble Supreme Court are as to whether
the Execution Application is belated; whether the Courts have
applied correct procedure to come to their decisions; and what
constitutes jurisdictional error.
Headnotes†
Sections 51 and 58 of the Code of Civil Procedure, 1908 - To
be read harmoniously:
Held: Section 51 defines the jurisdiction and power of the court to
enforce execution and enumerates modes by which the court may
order execution of a decree according to the nature of relief granted
in favour of a decree-holder - Proviso to Section 51 as inserted
by the Code of Civil Procedure (Amendment) Act, 1936 (Act 21 of
1936) limited the grounds on which a judgment-debtor could be
arrested or detained - Section 58 fixes the period for which the
judgment-debtor can be detained in a civil prison - Sections 51
and 58 should be read together. [Paras 19, 22, 24, 33]
[2025] 1 S.C.R.
1599
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
Order XXI Rule 32 of the Code of Civil Procedure, 1908 -
Explained:
Held: The Rule 32 in its sub-rules: (1) States that where a decree
is for specific performance of a contract, or for an injunction, and
the judgment-debtor willfully disobeys such decree, it may be
executed by attachment of property of the judgment-debtor or
by his detention, or by both; (2) Declares that where in a decree
for specific performance or for injunction, the judgment-debtor is
a corporation, it may be enforced by attachment of the property
of the corporation, or with the leave of the court by detention of
the directors or other principal officers or by both, attachment and
detention; (3) Provides for sale of attached property and payment
of the sale-proceeds to the decree- holder where the attachment
remains in force for six months and the judgment debtor fails to obey
the decree; (4) Deals with cases where the judgment debtor obeys
the decree or the decree-holder commits default; (5) Empowers
the executing court to take appropriate action for enforcing the
decree at the cost of the judgment-debtor who willfully disobeys
such decree; and the Explanation clarifies that the expression "the
act required to be done" covers prohibitory as also mandatory
injunctions. [Paras 26-31]
Order XXI Rule 11A Code of Civil Procedure, 1908 examined
in light of Section 51:
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
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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
[2025] 1 S.C.R.
1601
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
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,
1602
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Supreme Court Reports
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]
Case Law Cited
Jai Dayal And Others v. Krishan Lal Garg and Anr. [1996] Supp. 8
SCR 538 : (1996) 11 SCC 588; Mafatlal Industries Ltd. v. Union of
India [1996] Supp. 10 SCR 585 : (1997) 5 SCC 536 - relied on.
Shivamurthy Mahalingappa Kuchanaur v. Dannammadevi Cycle
Mart, Rabakavi, AIR 1987 Karnataka 26; Joy Chand Lal Babu
v. Kamalaksha Chaudhury, AIR 1949 PC 239; Anisminic v. The
Foreign Compensation Commission, 1967(2) AER 986 - relied on.
Maga Ram & Anr v. Kana Ram & Ors., AIR 1993 Rajasthan
208; Shri Benedito (Betty) Dias v. Armando Benedita Fernandes,
2017(4) AIR Bom. R 381; Dilbagh Singh and Others v. Harpal
Singh Alias Harpal Singh Chela and Ors., 2020 Supreme (P&H)
944 - discussed.
[2025] 1 S.C.R.
1603
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
Books and Periodicals Cited
Code of Civil Procedure, 1908 by Justice C.K. Thakker,
2009 Edn.
List of Acts
Code of Civil Procedure, 1908; Limitation Act, 1963.
List of Keywords
Prohibitory injunction; Arrest; Attachment; Limitation; Civil prison.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2248 of 2025
From the Judgment and Order dated 23.09.2019 of the High Court
at Calcutta in CO No. 3283 of 2019
Appearances for Parties
Rabin Majumder, Joydeep Mukherjee, Advs. for the Appellants.
Mrs. Lalita Kaushik, Adv. for the Respondents.
Judgment / Order of the Supreme Court
Order
1.
Heard the learned counsel appearing for the parties.
2.
Exemption Application is allowed.
3.
Leave granted.
4.
This appeal arises from the order passed by the High Court of
Judicature at Calcutta dated 23.09.2019 in CO. No. 3283 of 2019
by which the High Court rejected the CO filed by the appellants
herein (judgment debtors) and thereby affirmed the order passed
by the Executing Court dated 4.9.2019 in Title Execution Case No.
1 of 2017 arising out of Title Suit No. 25 of 1965.
5.
For the sake of convenience, the appellants herein shall be referred
to as the judgment debtors and the respondents herein shall be
referred to as the decree holders.
1604
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6.
The facts giving rise to this appeal may be summarised as under:
i.
In 1965, the predecessor-in-interest of the decree holders
herein instituted a Title Suit No. 25 of 1965 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 herein are the legal heirs of the original plaintiffs of
the Title Suit No. 25 of 1965 referred to above. The Subordinate
Judge 2nd Court, Hooghly decreed the suit vide the judgment
and decree dated 26.06.1976. The operative part of the decree
reads thus:
"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.
Issue No.6:-
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 hereby 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."
[2025] 1 S.C.R.
1605
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
ii.
Thus, the appellants herein were permanently restrained from
disturbing the peaceful possession of the respondents herein
in so far as the suit property is concerned.
iii.
The appellants herein being dissatisfied with the judgment and
decree dated 20.06.1976 referred to above, challenged the
same by filing Title Appeal No. 214 of 1976. 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.
iv.
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.
v.
The application filed by the respondents herein (decree holders)
which came to be registered as Execution Case No. 1 of 2017
concerning title Suit No. 25/1965 reads thus:
"IN THE COURT OF THE LD. CIVIL JUDGE SENIOR
DIVISON AT ARAMBAGH, HOOGHLY
Executive Case No. 2017 concerning Title Suit No.
25/1965
Heirs of Late Choto Chandi Charan Ghosal and heirs
of the said property 1 : Shri Ajit Kumar Ghoshal 2: Sri
Ranjit Ghoshal father of 1 and 2 Late Choto Chandi
Charan Ghoshal 3: Anup Kumar Ghoshal son of
Shri Swapan Ghoshal 4: Sri Arup Kumar Ghoshal
5: Sri Guru Charan Ghoshal father of 4 & 5 Sri Dilip
Kumar Ghoshal 6: Sri Rabindra Nath Ghoshal son
of Shri Asit Kurriar Ghoshal all residents of Harihar
Post Debkhand PS Goghat District Hooghly 1/
Jaidev Mallick 2/ Mahadev Mallick 3/ Bhoot Mallick
aka Bhudev Mallick aka Sahadev Mallick 4/ Laxman
Chandra Mallick all S/o Late Nagendranath Mallick
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all resident of Harlhar, Post Debkhand PS Goghat,
District Hooghly.
26/06/1976 AD
Civil Appeal No. 214/1976
Settlement 10/06/1980
-no-
-no-
-no-
-no1/Shri Jaydev Mallick 2/ Mahadev Mallick 3(Bhoot
Mallick aka Bhudev Mallick aka Sahadev Mallick 4/
Laxman Chandra Mallick all S/o Nagendranath Mallick
all resident of Harihar, Post Debkhand PS Go ghat,
District Hooghly.
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."
vi.
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.
[2025] 1 S.C.R.
1607
Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
vii. The written objections lodged in writing by the appellant herein
(judgment debtors) read thus:
"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 1s ambiguous and
since the petition Is handwritten it 1s 1lleglble 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
1608
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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 clalh1
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 holder.
AFFIDAVIT
I Shri Bhudeb Mallik, s/o Late Nagendranath Mallik,
aged about 55 years, by faith Hindu, by occupation
cultivation, residing at viii-Harihar, p.o. - Debkhanda,
[2025] 1 S.C.R.
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Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
Ranajit Ghoshal & Ors.
p.s. - Goghat, dist - Hooghly do hereby solemnly affirm
and declare that the statements made by me above
are true to the best of my knowledge and belief."
viii. On 21.01.2019, 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.
ix.
Later the appellants herein filed an application being CAN 74
of 2019 dated 26.07.2019 in the High Court seeking extension
of the interim order dated 27.03.2019 referred to above and
accordingly informed the trial court about the pendency of the
Revision Application being C.O. No. 1120 of 2019 and the
Application being CAN 74 of 2019 filed for extension of the
interim order dated 27.03.2019.
x.
However, on 4.09.2019, 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.
xi.
The order passed by the Civil Judge referred to above reads thus:
"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.
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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
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arrest may be restored to if there is adequate proof
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."
xii. The appellants herein being dissatisfied with the order passed
by the Civil Judge referred to above, challenged the same by
filing Revision Application No. COC 283 of 2019 before the
High Court invoking its supervisory jurisdiction under Article
227 of the Constitution.
xiii. The High Court vide its impugned order dated 23.09.2019
rejected the revision application and thereby affirmed the order
passed by the Civil Judge referred to above.
xiv. 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
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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.
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.
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Bhudev Mallick Alias Bhudeb Mallick & Anr. v.
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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."
7.
In such circumstances referred to above, the appellants herein
(judgment debtors) are here before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANTS(JUDGMENT
DEBTORS)
8.
Mr. Joydeep Mukherjee, the learned counsel appearing for the
appellants vehemently submitted that the High Court committed an
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.
9.
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.
10. 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 (for short, "the
Code").
11. He further submitted that the aforesaid aspect came to be overlooked
even by the High Court while rejecting the revision application.
12. The learned counsel in the last submitted that the High Court should
have at least permitted the appellants herein to file their written
objections to the execution case.
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13. In such circumstances referred to above, 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.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS (DECREE
HOLDERS)
14. On the other hand, Mrs. Lalita Kaushik, the learned counsel appearing
for the respondents vehemently submitted that no error not to speak
of any error of law could be said to have been committed by the
High Court in passing the impugned order.
15. The learned counsel would submit 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 would submit 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.
16. In such circumstances referred to above, the learned counsel prayed
that there being no merit in this appeal, the same may be dismissed.
ANALYSIS
17. Having heard the learned counsel appearing for the parties and
having gone through the materials on record the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned order.
18. Before adverting to the rival contentions raised on either side, it is
necessary for us to look into few relevant provisions of the Code.
19. Section 51 of the Code prescribes the powers of the court to enforce
execution. Section 51 of the Code reads thus:-
"51. Powers of Court to enforce execution.-Subject to
such conditions and limitations as may be prescribed, the
Court may, on the application of the decree-holder, order
execution of the decree-
(a) by delivery of any property specifically decreed;
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(b) by attachment and sale or by the sale without
attachment of any property;
(c) by arrest and detention in prison for such period not
exceeding the period specified in section 58, where arrest
and detention is permissible under that section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted
may require:
Provided that, where the decree is for the payment of
money, execution by detention in prison shall not be ordered
unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison,
the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or effect of
obstructing or delaying the execution of the decree,-
(i)
is likely to abscond or leave the local limits of
the jurisdiction of the Court, or
(ii)
has, after the institution of the suit in which
the decree was passed, dishonestly transferred,
concealed, or removed any part of his property, or
committed any other act of bad faith in relation to
his property, or
(b) that the judgment-debtor has, or has had since the
date of the decree, the means to pay the amount of the
decree or some substantial part thereof and refuses or
neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgmentdebtor was bound in a fiduciary capacity to account.
Explanation.-In the calculation of the means of the
judgment-debtor for the purposes of clause (b), there shall
be left out of account any property which, by or under any
law or custom having the force of law for the time being
in force, is exempt from attachment in execution of the
decree."
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20. There is no substantial change in the above quoted Section by the
Amendment Act of 1976 except addition of words "for such period
not exceeding the period specified in Section 58 where arrest and
detention is permissible under that section" in Clause (c). In the
unamended Section, there was no provision as to the period for
which a debtor may be detained in a civil prison. That lacuna is now
removed by the addition of this clause. The addition seeks to make
the provision harmonious with Section 58.
21. Calcutta High Court Amendment : In clause (b) omit the words, "or
by sale without attachment" between the words "sale" and "of any".
In the proviso, omit the words "for reasons recorded in writing" after
the words "the Court" and before the words "is satisfied". Also, add
the proviso-
"Provided also that the Court of Small Causes of Calcutta
shall have no power to order execution of a decree by
attachment and sale of immovable property or by appointing
a receiver in respect of such property."
22. Section 51 defines the jurisdiction and power of the court to enforce
execution. The manner of execution of a decree is laid down in the
First Schedule. The Section enumerates in general terms various
modes by which the court may order execution of a decree according
to the nature of relief granted in favour of a decree-holder.
23. After the decree-holder files an application for execution of a decree,
the executing court can enforce execution. A decree may be enforced
by delivery of any property specified in the decree, by attachment
and sale or by sale without attachment of any property, or by arrest
and detention in a civil prison of the judgment-debtor or by appointing
a Receiver, or by effecting partition, or in such other manner as the
nature of the relief may require.
24. Sections 51 and 58 respectively should be read together. Section 51
defines the power and jurisdiction of the executing court to enforce
execution, Section 58 fixes the period for which the judgment-debtor
can be detained in a civil prison.
25. Order XXI Rule 32 of the Code reads thus:-
"32. Decree for specific performance for restitution of
conjugal rights, or for an injunction.- (1) Where the party
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