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‑‑‑ O. XXI, r. 32‑‑Order for compliance of decree within a week on condition of attachment of property and simultaneous detention in civil prison (of judgment‑debtor) ‑ Award (made rule of Court) directing defendant to construct wall, to make pucca staircase and to plaster it with cement‑Decree‑holder (plaintiff) being dissatisfied with construction of judgment‑debtor filing execu tion application‑District Judge finding decree not obeyed to some extent, ordering judgment‑debtor to reconstruct passage according to decree within week failing which he shall be sent to civil prison and his property shall also be attached ‑Held, in circumstances, case not of serious nature and proposed order of attachment of property and simultaneous detention in civil prison highly unwar ranted.

M. Z. Khan for Appellant.

Muhammad Ali Gilani for Respondent.

Date of bearing : 14th June, 1982.

The facts leading up to this F. A. O. which is to be treated as civil revision, briefly are that Mst. Hassan Bibi, respondent ;plaintiff filed a suit for declaration to the effect that she was owner of the disputed wall and staircase. Alongwith the suit, she filed application for grant of temporary injunction restraining Ghulam Hussain, defendant appellant from demolishing the wall and staircase which was, however, dismissed by the trial Court. Feeling agrieved Mst. Hassan Bibi filed an appeal before learned District Judge, Sahiwal. During the pendency of the appeal, at the instance of the parties, the suit was transferred to the Court of learned District Judge in its original jurisdiction. With the consent of the parties, the matter was referred to Ch Muhammad Anwar as arbitrator who gave the award Exh. C. 1 which was made the rule of the Court. The award was to the effect that the wall from point B to E' in the plan Exh. C. 2 shall be constructed at the cost of Ghulam Hussain appellant and the staircase shall be built pakka and plastered with cement by Ghulam Hussain, Mst. Hassan Bibi was burdened with Rs. 500 as costs thereof to be paid to Ghulam Hussain within 7 days. It is to be noted that Mst. Hassan Bibi paid Rs. 500 in the Court at the time of the judgment. Thereafter Ghulam Hussain constructed the wall and staircase. Feeling dissatisfied with the construction, Mst. Hassan Bibi filed application for the execution of the decree asserting that the construction was not in accor dance with the decree. Ghulam Hussain contested the application. The learned District Judge framed the following issues :‑

Issue:

(1) Whether the judgment‑debtor had disobeyed the decree passed by this Court

(2) Relief.

After recording the evidence of the parties, the learned District Judge on issue No. 1 found there were neligible differences as regards the wall constructed by Ghulam Hussain petitioner. As for the passage, he found that petitioner/judgment-debtor haul not obeyed the decree . He observed as follows :‑

"According to the decree, the passage had to be 2"‑6' wide and 6'‑.‑OU high. A wooden door had to be fixed therein. The judgment‑debtor in violation of the decree left the passage of 2'‑51" in width and 2'‑7" high. According to the report, no human being can pass through this passage. Thus the judgment debtor did not obey the decree passed by this Court so far as the passage is concerned."

As a result of his finding on issue No. 1, he directed the petition to reconstruct the passage 2'‑6" in width and 6 feet height within a week failing which he shall be sent to civil prison and his property shall also be attached. He, however, kept the execution petition pending with him.

2. The learned counsel for the petitioner has vehemently argued that the conditional order dated 15th May, 1982 is not warranted by law. As against this, the learned counsel for the respondent has defen ded the impugned order and stated that the order is in accordance with the Order XXI; rule 32, C.P.C.

3. I have beard the learned counsel for the parties at length and have gone through the record available before me. It would ‑be conve nient to reproduce Order XXI; rule 32, C. P. C.

(1) Where the party against whom a decree for the specific perfor mance of a contract or for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property or, in case of a decree for the specific performance of a contract or for an injunction) by his detention in the civil prison, or by the attachment of his property or by, both.

The bare reading of Rule 32 makes crystal clear that there is no room for passing a conditional order. I am of the considered opinion that if the Court was inclined to provide an opportunity to the judg ment‑debtor to comply with the decree, the Court could not have stated therein "failing which he shall be sent to civil prison and his property shall also be ‑attached."

The Court should have awaited for a week and on complaint of non‑compliance should have passed the order sending him to civil prison and the attachment of his property after giving him an opportunity of being heard. There is no denying the fact that on finding issue No. 1 in the affirmative, the learned District Judge could straightaway send the judgment‑debtor to civil prison and also could attach his property but this course was not adopted and the learned District Judge had thought it proper to give time to the judgment‑debtor to obey the decree.

4. For all these reasons, I am of the opinion that the order passed in para. No. 6 of the judgment was unwarranted, the same is hereby set aside with the direction that the District Judge would proceed further according to law. I am constrained to observe that since the judgment debtor had constructed the staircase and wall, it was not a case of serious nature and the proposed order of the attachment of the property and simultaneous detention in the civil prison was highly unwarranted. In case of failure to obey the decree, the learned District Judge would pass order which may be according to the situation.

K. M. A. F. A. O. allowed.

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