S P DHANDAPANI Vs. PREMA

JUDGEMENT

(1.) Prema filed a suit in O.S. No. 161 of 1990 against one Dhandapani for permanent injunction restraining the defendant from running the electric motors and machineries in his ice factory, thereby causing nuisance by noise and vibration. The suit was dismissed after trial on 22-6-1993. Prema, the plaintiff filed an appeal before the appellate Court in A.S. No. 35 of 1993. Ultimately, after hearing the parties, the appellate Court was pleased to pass a decree by allowing the appeal restraining the defendant-Dhandapani from running the electric motor in his factory from 6.00 p.m. to 6.00 a.m. by the judgment dated 22-1-1996. Since the decree was not obeyed, Prema, the plaintiff filed execution petition on 10-8-2001 in E.P. No. 85 of 2001 praying for the order of arrest of the defendant and attachment of the property. After enquiry, the executing Court by the order dated 7-1-2003 held that the decree was disobeyed by the defendant/judgment-debtor. However, further opportunity was given to the defendant to obey the decree at least in the future and one month time was given till 7-2-2003. On 7-2-2003, it was represented by the plaintiff/decree-holder that the judgment-debtor was still running the Ice Factory in deviation of the decree. However, no material was produced to establish the same. Therefore, the said petition in E.P. No. 85 of 2001 was closed on 18-2-2003 giving the liberty to the decree-holder to file a similar application in the event of disobeying the decree by the judgment-debtor in future. Having aggrieved by the order dated 7-1-2003 giving the finding that the decree was disobeyed, Dhandapani/judgment-debtor filed C.R.P. No. 373 of 2003 and Prema, the plaintiff filed C.R.P. No. 529 of 2003 before this Court challenging the order refusing to send the judgment-debtor to prison. Since both the revision petitions are against the common impugned order, the common or der is being passed by this Court.

(2.) According to the counsel for the petitioner Dhandapani in C.R.P. No. 373 of 2003, once the decree-holder has shifted his residence, the decree passed against Dhandapani/judgment-debtor becomes non-est and as such, the order dated 7-1-2003 holding that the judgment-debtor has disobeyed the decree is wrong. He would cite the decisions in Surinder Kumar v. Ishwar Dayal, 1996 (2) MLJ (SC) 116 : (AIR 1996 SC 1351), Ramasamy Gounder v. Suguna, 1999 (3) MLJ 441 and Arjuna Gounder v. Govindaraju Reddiar, 1990 (2) Mad LW 98.

(3.) On the other hand, the learned counsel for the petitioner Prema in C.R.P. No. 529 of 2003 would contend that having held that the order has been wilfully disobeyed by the judgment-debtor, the trial Court should not have closed the execution petition and ought to have sent the judgment-debtor to the civil prison for having disobeyed the order or passed order of attachment of property.