MAHABALESHWAR FADTE Vs. BABURAO TUKARAM MANGALE

JUDGEMENT

(1.) HEARD. The petitioner challenges orders dated 30. 12. 2000 and 19. 8. 2002 passed in Civil Misc. Application No. 142/94/a and Special Civil Suit No. 28/1994/a respectively by the Civil Judge, Sr. Division, Ponda, being in contravention of the provisions of law comprised under Order XXXIX, Rule 2a of C. P. C. The contention on behalf of the petitioner is that the property which is subject-matter of the suit for specific performance cannot be attached in a proceeding under Order XXXIX, Rule 2a of C. P. C.

(2.) A few facts relevant for the decision are that respondent No. 1 has file Special Civil Suit No. 28/94 on 9. 3. 1994 in the Court of Civil Judge, Sr. Division, Ponda for specific performance of an Agreement dated 17. 7. 1992 stated to have been entered into with the respondent No. 2, accompanied by an application for temporary injunction to restrain the respondent No. 2 from entering into any transaction or transferring possession of a Flat No. G-4 situate on the Ground Floor of the building at Curti Ponda, Goa. By an Order passed on very day i. e. on 9. 3. 1994, in Civil Misc. Application No. 47/94, the trial Court restrained the respondent No. 2 from entering into any transaction or transferring possession and title of the said flat, pending the disposal of the suit. By an application dated 6. 7. 1994, the respondent No. 1 applied to the Court to invoke powers under Rule 2a of Order XXXIX of C. P. C. against the respondent No. 2 and the petitioner, on the ground of disobedience of the Order dated 9. 3. 1994 as the petitioner was inducted in the said flat by creating interest in his favour by the respondent No. 2 subsequent to the said order. Simultaneously, another application was filed for directions to the petitioner to vacate and to the respondent No. 2 to get vacated the suit flat and to keep it unoccupied till disposal of the suit. By an order dated 30. 12. 2000, the trial Court, after hearing the parties held that the respondent No. 2 was guilt of disobedience of the order dated 9. 3. 94 and further ordered attachment of the said flat and directed recovery of possession of the suit flat from the petitioner and ordered the same to be retained in possession of the respondent No. 2 till disposal of the suit. While attachment order continued, the respondent No. 1 under an application under Section 151 of C. P. C. prayed for attachment of the flat by locking the same and keys thereof be maintained with the Court. The petitioner was not made a party to the said application. By an order dated 19. 8. 02, the Court directed the respondent No. 2 to ensure that the petitioner vacates the suit flat and gives possession thereof to the bailiff of the Court and thereafter, the suit flat to be locked and sealed with one key to be retained with the respondent No. 2 and another key to be deposited with the Nazir of the Court. Aggrieved by both these orders, namely Order dated 30. 12. 2000 ordering attachment and further order dated 19. 8. 2002, confirming the attachment in the form of sealing of the flat with one key of the lock being retained by the respondent No. 2 and one key being deposited with the Nazir, the petitioner has filed the present petition.

(3.) THE learned Counsel appearing for the petitioner while drawing attention to the decision of Nawal Kishore Singh and ors. V. Rajendra Prasad Singh and ors. reported in AIR 1976 Patna 561 and drawing attention to Rule 2-A, Order 39 C. P. C. submitted that the subject-matter of the suit for specific performance cannot be allowed to be attached in exercise of power under the said rules as it will it will result in disappearance of the entire substratum of the suit itself and the suit shall be rendered infructuous. Rule 2-A of Order 39 of C. P. C. reads thus: