SHABBIR Vs. ASHFAQ AHMAD

JUDGEMENT

(1.) This F.A.F.O. purports to be under O.41, R.1(r), C.P.C. For the caveator Sri S.M. Chaturvedi has raised a preliminary objection before admission of this appeal that no appeal against the impugned order lies.

(2.) To appreciate the controversy a few facts may first be taken note of. On dismissal of their suit by the trial Court the respondents filed Civil Appeal No. 23 of 1980 and obtained an interim order from the appellate court on 1-2-1980 directing the parties to maintain status quo. It appears that the appellants violated this injunction giving rise to an application under O.39, Rule 2-A(i) C.P.C. This application was allowed on 18-7-1980 and the court ordered proceedings to be drawn up against the appellants for violating the injunction. Aggrieved by the order the appellant filed an appeal (F.A.F.O. No. 406 of 1980) before the High Court which was dismissed on 3-8-1984. After this, 7-10-1986 was fixed in the appeal (No. 23 of 1980) but on account of default of parties on that date it was dismissed, although it was subsequently restored on 25-5-1987. In the meantime, on 24th Dec., 1986 the respondent moved an application seeking enforcement of order dated 18-7-1980. The appellants objected to this contending that order dated 18-7-1980 could not be enforced since the appeal wherein the interim order had been passed had been dismissed and between 3-8-84 and 25-5-1987 no appeal was pending. Consequently even the order dated 1-2-1980 did not exist. This plea did not find favour with the trial court and the objection was overruled by the impugned order giving rise to the present appeal.

(3.) The objection of the respondent to the maintainability of the appeal is that an appeal under O.43, R.1(r) lies only against an order passed under any of the Rules 1, 2, 2-A, 4 or 10 of O.39. Since the order does not fall under any of these provisions no appeal lay. From the facts narrated earlier it will be apparent that the impugned order was passed on an application seeking to enforce an order finally adjudicating matter under 0.39, Rule 2-A(i), C.P.C. The order in question is apparently not one under Rules 1 or 2 or even under R.10 of Order 39. Order dated 18-7-1980 was passed against the appellant as a consequence of violation of injunction order dated 1-2-1980 by him. It was in fact that order which was one under Rule 2-A of O.39, and was later confirmed by the High Court on 3-8-1984 in F.A.F.O. No. 406 of 1980. Thus the order passed under O.39 R.2-A (i) to proceed against the appellant for violating the interim injunction stood finally adjudicated already. Any subsequent order passed to enforce such an order cannot be said to have been passed under the provisions of O.39, of the Code. At the best such an order would be in the nature of an order for the execution thereof.