Source: Supreme Court 

Why in News? 

A bench of Justice JB Pardiwala and Justice R Mahadevan held that the Court should not make an order for detention of a person unless it is satisfied that the person has had an opportunity of obeying the decree yet has willfully disobeyed it.  

• The Supreme Court held this in the case of Bhudev Mallick Alias Bhudeb Mallick & Anr v. Ranajit Ghoshal & Ors. (2025). 

What was the Background of Bhudev Mallick Alias Bhudeb Mallick & Anr v. Ranajit Ghoshal & Ors. Case?   

• The original plaintiffs filed Title Suit seeking confirmation of possession or recovery of possession based on title, along with a permanent injunction against disturbance.  
• The suit was decided in favor of the plaintiffs in 1976, confirming their title and possession, and permanently restraining the defendants from disturbing their possession. 
• Dissatisfied with the 1976 decree, the appellants (defendants) filed appeal, but the details of its disposal are unclear, with the appellants claiming it was disposed of in 1980. 
• In 2017, after approximately 40 years, the respondents (heirs of the plaintiffs) filed an Execution Case, claiming that the appellants were violating the permanent injunction by disturbing their possession of the suit property. 
• The appellants filed written objections to the execution case in 2018, arguing that the suit was not maintainable, the decree was vague, and they had not violated the decree, as they had been in possession of the property since 1980. They also stated that the decree holders had never had possession of the property. 
• The Executing Court rejected the appellants' written objections and proceeded with final arguments in January 2019. The appellants filed a revision application before the High Court, which stayed the proceedings in March 2019. 
• Despite the stay, the Civil Judge passed an order on 4th September 2019 allowing the execution case ex parte, directing the appellants to be arrested and detained in civil prison for 30 days and their property to be attached. 
• The appellants filed a revision application challenging the order, but the High Court dismissed the revision application in September 2019, affirming the lower court's decision and rejecting the appellants' claims. 
• Dissatisfied with the High Court's ruling, the appellants are now challenging the order in the present appeal before the Supreme Court.

What were the Court’s Observations?

• The Court first of all discussed the provisions related to arrest enumerated under Code of Civil Procedure 1908 ( CPC) . 
• With regard to limitation period for execution of the decree the Court held that the proviso to Article 136 of the Limitation Act,1963 (LA) makes it clear that for enforcement or execution of a decree granting perpetual injunction there shall be no period of limitation. 
• As per Order XXI Rule 32 of CPC where a judgment debtor disobeys a decree of injunction he can be dealt with under this rule by imprisonment or by attachment of property or by both. 
• However, 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. Absence of such finding is a serious infirmity vitiating the order. 
• Hence, what is required of the person seeking execution of the decree for injunction under the subrule is to place materials before the executing Court as would enable it to conclude: 
  • That the person bound by the decree, was fully aware of the terms of the decree and its binding nature upon him. 
  • 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. 
• The Court also discussed in this case as to what would constitute a jurisdictional error. 
• The Court finally held that the executing Court should have been considerate and should have at least given one opportunity to the appellants before ordering their arrest. 
• Thus, it was held by the Court that the order passed by the High Court is hence unsustainable in law. 

What are the Provisions Related to Arrest under CPC? 

• Proviso to Section 51 of CPC: 
  • Where a decree is for the payment of money, execution by imprisonment shall not be ordered unless: 
    • Opportunity to Show Cause – The judgment-debtor must be given a chance to explain why he should not be imprisoned. 
    • Court's Satisfaction – The Court must record reasons in writing and be satisfied that: 
      • The judgment-debtor, to obstruct or delay execution, is likely to abscond or leave the Court's jurisdiction. 
      • After the suit was filed, the judgment-debtor dishonestly transferred, concealed, or removed property, or acted in bad faith concerning his property. 
      • The judgment-debtor has had the means to pay the decree amount (or a substantial part) since the decree date but refuses or neglects to pay. 
      • The decree amount was one for which the judgment-debtor was bound to account in a fiduciary capacity.
• Section 58 of CPC: 
  • A person detained in civil prison for non-payment of a decree shall be detained: 
    • For a maximum of three months if the amount exceeds ₹5,000. 
    • For a maximum of six weeks if the amount is between ₹2,000 and ₹5,000. 
  • No detention shall be ordered if the decree amount is ₹2,000 or less. 
  • Release from detention does not discharge the debt. 
  • The judgment-debtor cannot be re-arrested under the same decree.
• Order XXI Rule 32 of CPC: 
  • This provision provides for execution of decree for specific performance for restitution of conjugal rights, or for an injunction. 
  • Sub-rule (1) of Rule 32 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. 
  • Sub-rule (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. 
  • Sub-rule (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. 
  • Sub-rule (4) deals with cases where the judgment-debtor obeys the decree, or the decree-holder commits default. 
  • Sub-rule (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.
• Order XXI Rule 11 A of CPC: 
  • Order XXI Rule 11A of CPC provides that: 
    • Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.