Perpetual Injunction Can Be Enforced Anytime, But Due Process Must Be Followed

Introduction

In Bhudev Mallick @ Bhudeb Mallick & Anr. v. Ranajit Ghoshal & Ors. (Civil Appeal No. 2248 of 2025), the Supreme Court addressed a critical procedural issue surrounding the executability of decrees of perpetual injunction after a substantial time lapse. Overturning the Calcutta High Court and the executing court’s decisions, the Supreme Court held that while perpetual injunctions are not barred by limitation, coercive enforcement measures such as arrest and detention require strict compliance with procedural safeguards under the Civil Procedure Code (CPC). The ruling reaffirms due process protections, even in the context of longstanding decrees.

1. Factual Background and Procedural History

The case traces back to a decree passed in Title Suit No. 25 of 1965, where the plaintiffs (predecessors of the respondents) were granted a decree of title and perpetual injunction against the appellants (judgment-debtors). The decree dated 26 June 1976 restrained the defendants from disturbing the plaintiffs’ possession of the suit property.

After nearly 40 years, the decree-holders initiated Execution Case No. 1 of 2017, alleging that the appellants had wilfully violated the perpetual injunction. The executing court passed an ex parte order on 4 September 2019, directing:

• Arrest and 30-day detention of the judgment-debtors, and
• Attachment of their property.

The High Court of Calcutta affirmed this execution order via its decision dated 23 September 2019, rejecting the appellants’ revision under Article 227 of the Constitution.

Aggrieved, the appellants filed the present appeal before the Supreme Court, challenging the legality and procedural propriety of the execution order.

2. Identification of Legal Issues

The Supreme Court considered the following central legal issues:

1. Can a decree of perpetual injunction be executed after 40 years?
2. Does Order XXI Rule 32 CPC permit arrest and attachment without a specific finding of wilful disobedience?
3. Is compliance with Order XXI Rule 11-A CPC mandatory before ordering arrest and detention?
4. Did the High Court err in upholding the execution order despite procedural lapses by the executing court?

3. Arguments of the Parties

Appellants (Judgment-Debtors)

• Argued that execution after four decades was improper and procedurally flawed.
• Emphasized non-compliance with Order XXI Rule 11-A, requiring an affidavit detailing grounds for arrest.
• Asserted they were denied a fair opportunity to file objections due to earlier case developments and delay.
• Alleged that the executing court passed the execution order without a judicial finding of wilful disobedience.

Respondents (Decree-Holders)

• Argued that no limitation period applies to execution of perpetual injunction decrees under the proviso to Article 136 of the Limitation Act, 1963.
• Asserted that the judgment-debtors continued to violate the injunction, justifying execution by arrest and attachment.
• Maintained that procedural compliance was sufficient as grounds for arrest were stated in the application.

4. Court’s Analysis and Reasoning

a. No Limitation for Executing Perpetual Injunctions

The Court reaffirmed the proviso to Article 136 of the Limitation Act, holding that a decree for perpetual injunction can be executed at any time, provided there is a fresh or continuing violation.

b. Execution Under Order XXI Rule 32 CPC

• The Court clarified that arrest, detention, and attachment under Order XXI Rule 32 are available only if:
  
  
  • The judgment-debtor had an opportunity to comply, and
  • Wilful disobedience of the injunction is established.
• The executing court must record a specific finding of such disobedience.
  

c. Mandatory Compliance with Order XXI Rule 11-A

• Rule 11-A requires the decree-holder to state grounds for arrest in an application or supporting affidavit.
• The Supreme Court held this requirement to be mandatory, noting that no such affidavit was filed.
• The executing court’s failure to demand such affidavit or hold an inquiry was a serious procedural lapse.

d. High Court Failed to Exercise Supervisory Jurisdiction

• The Court strongly criticized the High Court’s one-line dismissal of the revision, stating it failed to scrutinize the jurisdictional error committed by the executing court.
• Reiterating that any deprivation of liberty demands strict judicial safeguards, the Court called the High Court’s approach disappointing.

5. Final Conclusion and Holding

The Supreme Court allowed the appeal, setting aside:

• The execution order dated 4 September 2019 passed by the Civil Judge, and
• The High Court’s order dated 23 September 2019 in CO No. 3283 of 2019.

The Court held that:

• While the execution of a perpetual injunction decree is not barred by limitation,
• Enforcement through arrest and attachment demands procedural fairness, factual findings, and statutory compliance.

The Court emphasized that liberty cannot be curtailed without due process, and failure to follow procedural mandates results in jurisdictional error.

FAQs:

1. Is there a time limit to enforce a perpetual injunction decree?

No. Under the Limitation Act, there is no time bar for executing a decree of perpetual injunction. It can be enforced whenever there’s a violation.

2. Can a person be jailed for disobeying an injunction order?

Yes, but only after the court records that the person wilfully disobeyed the decree despite an opportunity to comply, as required under Order XXI Rule 32 CPC.

3. Is an affidavit necessary for arrest in execution proceedings?

Yes. Order XXI Rule 11-A CPC mandates that arrest applications must state grounds for detention, preferably via a supporting affidavit.

4. What happens if a court orders arrest without proper findings?

Such an order is a jurisdictional error. The Supreme Court held that arrest and property attachment require strict adherence to procedural law.

5. Can a High Court dismiss a revision petition without detailed reasoning?

No. High Courts exercising supervisory jurisdiction must consider whether the lower court committed legal or jurisdictional errors before dismissing such petitions.

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