BHUDEV MALLICK ALIAS BHUDEB MALLICK & ANR. versus RANAJIT GHOSHAL & ORS.

Citation: [2025] 1 S.C.R. 1598 · Decided: 17-01-2025 · Supreme Court of India · Bench: J.B. PARDIWALA, R MAHADEVAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

[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 
1600
[2025] 1 S.C.R.
Suprem

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