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2005 DIGILAW 869 (MP)

SURESH CHANDRA v. KAILASH CHANDRA

2005-08-17

N.K.MODY

body2005
N. K. MODY, J. ( 1 ) BEING aggrieved by the order dated 9th July, 2001 passed by Ilnd additional District Judge, Bhind in M. A. No. 7/2000 whereby the order dated 4-7-2000 passed by learned Civil Judge, Class-11, Bhind in M. J. C. No. 5/98 whereby the application filed by the petitioner under Order XXXIX, Rule 2-A of C. P. C. was allowed and the respondent was directed to be sent in civil jail for a period of one month and to pay a fine of rs. 1,000/- was set aside, the present revision petition has been filed. ( 2 ) SHORT facts of the case are that the petitioner filed a suit for permanent injunction wherein a prayer was made for grant of temporary injunction. The suit was registered as civil Suit No. 129/98 in the Court of Second civil Judge, Class II, Bhind. On 2-8-1991, after hearing both the parties, the prayer made by the petitioner was allowed and temporary injunction was granted whereby the respondent was restrained from alienating the property. At the latter stage of the suit on 14-12-1993, the learned Trial Court while deciding the preliminary issue came to the conclusion that the Court has no jurisdiction, hence the suit was returned for filing the same before the competent Court having jurisdiction. Instead of filing the suit before the competent court, petitioner preferred to challenge the order before the Appellate Court. Hence, the appeal was filed in the Court of IVth Additional district Judge, Bhind. The appeal filed by the petitioner was allowed on 18-1-1997 whereby order dated 14-12-1993 passed by Second civil Judge, Class-II Bhind, was set aside holding that the Civil Court is having the jurisdiction. ( 3 ) DURING pendency of the appeal filed by the petitioner, on 20th February, 1994 and 26th of August, 1995 sale deeds of the property in dispute were executed by the respondent. On 4-11-1998 after the order of appellate Court an application was filed by the petitioner under Order XXXIX, Rule 2-A of the C. P. C. for disobedience of the order dated 2-8-1991. This application was registered as case No. 5/98 M. J. C. The application was opposed by the respondent. On 4-11-1998 after the order of appellate Court an application was filed by the petitioner under Order XXXIX, Rule 2-A of the C. P. C. for disobedience of the order dated 2-8-1991. This application was registered as case No. 5/98 M. J. C. The application was opposed by the respondent. After holding the summarily enquiry by order dated 4-7-2000, the learned Trial Court allowed the application holding that by executing the sale deed dated 20-2-1994 and 26-8-1995 respondent has disobeyed the order passed by the Court hence it was directed to punish the respondent for civil imprisonment for a period of one month and for a fine of Rs. 1,000/ -. Against the order dated 4-7-2000 respondent preferred an appeal in the Court of Second Additional District judge, Bhind which was numbered as M. A. No. 7/2000 and was allowed vide order dated 19th july, 2001 whereby the order of Civil Judge, class-II, Bhind was set aside. Being aggrieved by the order passed by the Appellate Court the present revision petition has been filed. ( 4 ) LEARNED Counsel for the petitioner submits that the appeal is a continuation of suit. Since in appeal the order dated 14-12-1993 was set aside. Therefore, the action of respondent in executing the sale deed dated 20th February, 1991 and 26th of August, 1995 amounts to disobedience of the order dated 2-8-1991, therefore, he was rightly punished by the learned Trial Court and the order has been wrongly set aside by the Appellate court. Reliance was placed by the learned counsel on a decision in the matter of Ranjit singh v. Dr. Sarda Ranjan Prasad Sinha, wherein Patna High Court has held that all ancillary orders made with a view to aid and supplement the ultimate decision in the suit get revived with the restoration of the suit dismissed for default. An order striking off the written statement in a suit for eviction for defendant's non-depositing of the rent being vital to the main decision in the suit should be held to have automatically revived on the suit dismissed for default being restored. Further reliance was placed by the learned Counsel on a decision in the case of Ramankutti Guptan v. Auara wherein the Hon'ble Supreme Court while dealing with a case of specific relied act held that it is settled law that an appeal is a continuation of the suit. Further reliance was placed by the learned Counsel on a decision in the case of Ramankutti Guptan v. Auara wherein the Hon'ble Supreme Court while dealing with a case of specific relied act held that it is settled law that an appeal is a continuation of the suit. Therefore, on the strength of this the learned Counsel submits that vide order dated 14-12-1993, the suit filed by the petitioner was not dismissed but was returned to the petitioner to file before Court of competent jurisdiction and ultimately this order was set aside by the Appellate Court vide dated 18-1-1997. Therefore, the order dated 2-8-1991 was automatically revived. ( 5 ) SHRI Naval Gupta learned Counsel for respondent placed reliance on the bare provision of Order XXXIX, Rule 2-A, C. P. C. which reads as under: -Order XXXIX, Rule 2-A. Consequence of disobedience or breach of injunction : - (1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto. ( 6 ) LEARNED Counsel submits that on the date of execution of sale deed i. e. 20-2-1994 and 26-8-1995 there was no interim order in existence, therefore, while, execution the sale deed on these dates the respondent has not committed any breach of the order. ( 6 ) LEARNED Counsel submits that on the date of execution of sale deed i. e. 20-2-1994 and 26-8-1995 there was no interim order in existence, therefore, while, execution the sale deed on these dates the respondent has not committed any breach of the order. Learned counsel further placed reliance on a decision in the matter of Kanchan Bai v. Ketsidas, wherein Rajasthan High Court has held that by setting aside of the judgment of Trial Court and remanding the case back to the Trial Court by Appellate Court does not automatically stand revived. The interlocutory orders viz. striking out defence which are meant to aid and supplement the ultimate decision arrived at in the main suit or appeal would be ancillary order and such order would stand revived automatically on the restoration of the suit. Orders granting temporary injunction do not aid and supplement the ultimate decision of the suits. As such they cannot be said to be ancillary orders. ( 7 ) LEARNED Counsel submits that in a suit wherein the temporary injection is being granted and the suit is dismissed and in appeal the judgment passed by the Civil Court is set aside, then the life of the interim injunction granted by the Trial Court comes to an end, the moment the suit is dismissed. Learned counsel further submits in appeal if no application for temporary injunction is prayed and granted then during pendency of appeal, there will be no stay. It is further submitted that in case appeal is allowed and final order passed by Trial Court is set aside and case is remand back then in that case automatically the interim order may revive. It was also submitted that if the injunction is to the effect of restraining the alienation of the property, then it will also revive after the remand but dur ing the pendency of appeal when there was no stay, if any property is alienated then after the remand the other party cannot be held liable for disobeying the order of the Court for the simple reason that on the date when the sale deeds were executed by the respondent there was no order in force restraining the respondent from alienating the suit property. ( 8 ) SINCE on the date of execution of sale deeds there was no orders of temporary injunction in force, therefore, only on the basis that subsequently the appeal was allowed, and case was remanded, the interim order of stay granted was revived, it cannot be said that respondent has disobeyed the order in any manner. In view of this no illegality has been committed by the learned Appellate Court in passing the impugned order. Hence, the revision petition stands dismissed. No order as to costs. Revision dismissed. .