UTTAM BHATTA CO Vs. BABU RAM

JUDGEMENT

(1.) THE opposite parties filed a suit against the applicants for a perma nent injunction, restraining them from taking or digging earth from 13 plots of land. On the application of the plaintiffs, an ad interim order of injunction was passed on July 23, 1965 in terms of the relief prayed for in the plaint. It ap pears that the applicants committed a breach of the order of injunction and re moved certain quantity of earth from some of the plots. Thereupon the plain tiffs moved an application on January 3, 1966, under Order XXXIX, Rule 2-A of the Code of Civil Procedure. This applica tion was allowed on March 21, 1967 and certain property of the applicants was ordered to be attached. The attachment was to remain in force for a period of one year as provided in the rule. The order of the trial court was upheld in appeal and the attachment w.as actually made on May 11, 1968. On May 7, 19_69 the plain tiffs filed another application praying that the attached property be sold and compensation be awarded to them out of the sale proceeds. The trial court dismiss ed the application. Thereupon the plain tiffs filed an appeal. The appeal was allowed by the Additional Civil Judge. The order of the trial court was set aside, the application of the plaintiffs was al lowed .and the attached property was di rected to be sold. Against this order, the present revision has been filed.

(2.) THE only question, which arises for consideration in this revision is whe ther on the facts and circumstances of this case, the attached property could be ordered to be sold. This Court has deleted sub-rules (3-) and W of Rule 2 of Order XXXIX and has added the follow ing Rule 2-A:-

(3.) NO case has been cited before me to show what amounts to the continu ance of the disobedience or breach of an injunction order within the meaning of sub-r. (2) of R. 2-A or sub-r. (4) of R. 2 which uses the same language. Learned counsel for the opposite parties, has reli ed upon the decision of a Division Bench of this Court in Nawab Singh v. Mithu Lal. AIR 1935 All 480. In this case, the provisions of Order XXI, Rule 32, which are somewhat analogous to the provisions of Rule 2-A of Order XXXIX came up for interpretation. Sub-rule (1) of Order XXI, Rule 32 inter alia, provides that where a decree for an injunction has been passed and the judgment-debtor has wil fully failed to obey it the decree may be enforced by his detention in the civil prison or by the attachment of his pro perty or by both. Sub-rule (3) provides that where the attachment has remained in force for three months, if the judg ment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold and compensation may be awarded to the decree-holder out of the sale proqeeds. It will be seen that, under this sub-rule, the attached property can be sold if the judgment-debtor has not obeyed the decree after the attach ment. In Nawab Singh's case a decree was passed, prohibiting the judgment-debtor permanently from holding a fair on certain lands. The judgment-debtor deliberately disobeyed the order and held a fair. On the application of the decree-holder, his property was attached and was subsequently ordered to be sold. Be fore this Court, it was urged that the pro perty could only be sold if there was a breach after the attachment. The Division Bench rejected this contention and ob served:-