RASHIDA IBRAHIM SHAIKH Vs. DAKSHABEN CHANDRAKANT NAGARSHETH

JUDGEMENT

(1.) This contempt proceeding has been initiated for violation of order dtd. 21/2/2006 of temporary injunction granted or restraining third respondent from alienating the suit property. The said order of temporary injunction granted by the trial court was confirmed on 10/5/2006. The said order of temporary injunction was granted in favour of the plaintiff - complainant in suit filed by her for specific performance against respondent No.3. The said suit came to be decreed on 23/4/2008. During this interregnum period i.e. after the order of temporary injunction was passed on 21/2/2006 and before the decree in the suit was passed on 23/4/2008, the third respondent being well aware of the order of temporary injunction, is said to have executed a sale deed in favour of first respondent on 31/3/2008 and the said sale deed undisputedly has been executed by the first respondent unto herself as power of attorney holder of respondent No. 3. It is thereafter respondent No. 1 is said to have executed sale deed in favour of respondent No. 4 on 13/6/2008. This Court has already observed vide order dtd. 1/12/2021 that there would be no cause of action for proceeding against fourth respondent for alleged violation of order dtd. 21/2/2006 and 10/5/2006 on account of said order not being against fourth respondent.

(2.) Pursuant to the decree dtd. 23/4/2008, passed in the suit for specific performance, the complainant - applicant had initiated execution proceedings to enjoy the fruits of the decree. On account of the respondents having failed to comply with the decree, and the judgment and decree of specific performance having been affirmed by jurisdictional Court in Appeal No. 25 of 2008 by judgment and decree dtd. 4/5/2012 which was also affirmed in Second Appeal No. 148 of 2012 disposed of on 1/10/2012 confirming the judgment and decree passed by the trial court and these orders having been confirmed by the Hon'ble Apex Court in Special Leave Petition No. 8578 of 2013 by order dtd. 8/5/2013, it has to be examined whether contempt proceedings should be proceeded or not. The Executing Court through Court Commissioner got executed the sale deed in respect of the property for which an order of temporary injunction had been passed and the said sale deed was executed in favour of the decree holder namely the complainant herein. Thus, the order of temporary injunction having got merged with the order of final decree and final decree having been executed, continuation of contempt proceedings would not arise.

(3.) That apart, we notice that there is a bald assertion in the contempt petition at paragraph 2.7 to the effect that the power of attorney holder namely the respondent no. 1 who acted as power of attorney holder of respondent no. 3 had got executed a sale deed unto herself. This does not indicate about there being any order of temporary injunction operating against respondent no. 1 or the third respondent against whom temporary injunction was granted, had informed the first respondent of such order of temporary injunction was operating. However, learned Senior Advocate Mr. Mehul Shah appearing for the complainant has drawn our attention to para 2.9 of the petition to buttress his arguments that respondent no. 1 was completely aware of the orders passed by the District Court since he has filed various application as power of attorney of respondent No. 3 and also as purchaser. Mere filing of the applications or his participation in the suit by itself would not be the deciding factor or tilting factor in favour of the complainant to establish that the order of temporary injunction which was granted on 21/2/2006 and confirmed on 10/5/2006, which was operating against respondent no. 3 was well within the know how of the first respondent. For this reason also, we are not inclined to continue the contempt proceedings.