1. This revision is directed, against the order dated 8-3-1988 passed by the executing Court whereby it directed the petitioner not to auction the collection of octroi rights for the year 1987-88.
2. The facts leading to the filing of the above revision are that the respondent No. 1 filed a suit wherein it is alleged that the respondent agreed to establish its Sugar Mills within the territorial jurisdiction of the petitioner. It is the case of the respondent that the petitioner agreed not to levy any octroi and taxes whatsoever on any item such as machinery, equipment, construction material and other material for establishing the sugar mills and instead of that entered into an agreement through a registered deed whereby a package deal was decided and the respondent No. 1 was to give Rs.
3. 50,000 per annum to the petitioner towards full and final octroi and other taxes for one year. It is the further case of the respondent No. 1 that this package deal was for five years commencing from 1-7-1986 to 30-6-1991. The respondent No. 1 filed Suit No. 88 of 1986 for declaration and injunction. The respondent. No. 1 also filed an application under Order XXXIX, Rules 1 and 2, C.P.C.
4. Alongwith the plaint and obtained ad interim injunction. The petitioner filed an application under Order VII, Rule 11, C.P.C. For rejection of the plaint as the suit did not lie in view of the provisions of Section 47, C.P.C. The petitioner also filed an, application under Order XII(2), C.P.C. Wherein it is alleged that compromise decree was obtained by fraud and is without jurisdiction. The plaint in Suit No. 55 of 1987 was rejected by order dated 1-10-1987. The respondent No. 1 filed execution application being Execution No. 5 of 1.987 and obtained an ex parte order that petitioner should not disturb the present position as per terms of decree dated 27-4-1987. The petitioner filed objections.
5. The objections were rejected by order dated 8-3-1988. The petitioner being aggrieved has filed the present revision.
6. I have heard the learned counsel for the parties. The Executing Court on 17-9-1987 passed the following order:-- " . . Admit. Register. Let the Decree Holder deposit the amount of Rs. 32,500 being the balance of octroi money of the financial year' 1987--88. The judgment debtor should not disturb the present position as per terms of the decree dated 24-1-1987 till further orders:'
7. The executing court while rejecting the objections filed. By the petitioner held:-- ". . . In view of these facts and grounds the present execution application merits to be granted.
8. Learned counsel for the D.H. Has stated that Rs. 25,000 has been already paid to J.D. On 30-6-1987, while sum of Rs. 32,500 is sought to be deposited which is in term of the decree. Accordingly the D.H. Is allowed to deposit the balance amount viz. Rs. 32,500 if not already deposited within seven days which amount may be withdrawn by the J.D. With direction not to auction the collection of octroi rights for the year 1987-88 and not to recover octroi from D.H. As per terms of compromise application/decree dated 24-11-1986.
9. "32.--(1) .....
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention m the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) ......
10. (4).......
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable at the decree--holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court direct and may be recovered as if they were included in the decree."
11. Mr. Abdul Sattar G. Shaikh contended that the executing Court has no jurisdiction to restrain the petitioner from not auctioning the octroi rights for the year 1987-88.
12. On the other hand Mr. Raees M. Mushtaq, Advocate for respondent No. 1 supported the order. He contended that the executing Court has inherent power to restrain the petitioner from not auctioning the octroi rights.
13. It appears that the respondent No. 1 filed a suit for declaration and permanent injunction restraining the petitioner from challenging the agreement or interfering in the import of machinery and other articles by the respondent No. 1 for its sugar mills. The parties filed a compromise application. The suit was disposed of in terms of the compromise application by order dated 24-1- 1987. The petitioner challenged the compromise in Suit No. 55 of 1987. The respondent No. 1 filed an application for rejection of the plaint which .Was allowed by order dated 1-10-1987 and the plaint was rejected. The respondent No. 1 filed Execution No. 5 of 1987 stating therein that the petitioner violated the decree dated 24-1-1987. The executing Court restrained the petitioner from auctioning the octroi rights or the petitioner was directed that it should not disturb the present position as per terms of decree dated 24-1-1987.
14. It may be seen from the above facts that the decree as it stands today in favour of the respondent No. 1 in suit No. 88 of 1986 is only a decree restraining the petitioner from challenging the agreement or interfering in the import of machinery and other articles by the respondent No. 1 mills.
15. The petitioner shall not lease out in any manner collection of octroi rights on a material by the sugar mills for a period of five years from the date of enforcement of the agreement i.e. 1-7-1986.
16. The respondent No. 1 is entitled only to the enforcement of the prohibitory or perpetual injunction granted in its favour as per decree dated 24-1-1987. If there is any violation of the perpetual injunction it can certainly take action against the petitioner or persons meddling with its rights by proceeding under Order XXI, Rule 32(1), C.P.C. The prayer now asked by the respondent No. 1 comes within Order XXI, Rule 32(5), C.P.C. The respondent No. 1 has asked for not to auction the collection of octroi rights to any person or recover the octroi from the respondent No. 1 or through any body in view of the decree dated 24-1-1987.
17. Sub-rule (5) of Rule 32 under which the decree-holder seeks relief, authorises the Court to direct .The act required to be done, so far as practicable, by the decree-holder or some other person appointed by the Court, at the cost of judgment-debtor. The statutory illustration illustrates the scope of the rule by an instance that where a person of little substance erects a building which renders a family mansion uninhabitable and the judgment-debtor in spite of his detention in prison and attachment of property, declines to obey the decree, the Court may remove the building which the decree has directed to do and recover the cost from the judgment-debtor in execution proceedings. This shows that the act which is authorised by sub-rule (5) to be done consists of something which may be done so far practicable by the decree-holder himself at the expense of the judgment-debtor. The decree of the Court directing the judgment-debtor to quit and vacate the premises cannot constitute an act which may, without the will and volition of the judgment-debtor, be done by the decree-holder.
18. A perusal of sub-rules (1) and (5) of Rule 32 would show that sub-rule (1) would apply to both mandatory as-well as prohibitory injunction. The word `injunction' m sub-rule (5) has been qualified by the words `has not been obeyed" and the rule says that in the event of disobedience of the injunction, the Court may direct that the act required to be done may be done, so far as practicable, by the decree-holder or some other person appointed by the Court.
19. Mr. Sattar contended that no proof had been adduced against the petitioner/judgment-debtor in the present case that it had flouted the Court's injunction m any way. His submission is that the execution can be levied under Order XXI, Rule 32, only in case where it is established that the judgment-debtor had wilfully disobeyed the decree for injunction. The implication of the rule, according to learned counsel, is that it is for the decree-holder to prove not only the act of disobedience of which it accuses the judgment-debtor, but also wilfulness in that act: Learned counsel's point was that in this case the decree---holder had signally failed at the enquiry to make out its allegation that the judgment-debtor had violated the injunction. Learned counsel particularly referred to the execution application.
20. I agree with Mr. Sattar, in principle, that for an execution Court to act under Order XXI, Rule 32, there must be evidence of wilful disobedience of a decree of injunction. In the present case there is no finding that petitioner had wilfully disobeyed the decree for injunction.
21. I, therefore, hold that a. Decree for injunction in this case is to be executed by the Court below in the manner provided by sub-rule (1) of Rule 32 of Order XXI of the Code and not by issuance of injunction against the petitioner in accordance with sub-rule (5) and the impugned order of the executing Court below is without jurisdiction.
22. Accordingly, the revision is allowed and the impugned order of the Court directing the petitioner not to auction the octroi rights is set aside. The case is remanded to the executing Court for deciding the execution application afresh in accordance with law after affording opportunity to both the parties. Under the circumstances of the cots the parties are left to bear their respective costs of this revision