THIRUVALKANI K NAGARAJ Vs. THIRUVALKANI SAROJAMMA

JUDGEMENT

(1.) Plaintiff in O.S.No. 29 of 1986 on the file of the Court of the Subordinate Judge, Nandyal, preferred A.S.No. 1204 of 1994 to this Court against the decree of dismissal and filed C.M.P.No. 14374 of 1994 seeking an injunction restraining the respondents in the appeal from alienating the properties covered by the suit during the pendency of the appeal. A learned single Judge of this Court granted an ex parte order of injunction on 28-10-1994. Subsequently respondents in the appeal filed C.M.P.No. 18845 of 1994 to vacate the ex parte order of injunction dated 28-10-1994. By an order dated 2-12-1994, a learned single Judge of this Court taking into consideration the averment in para 15 of the counter-affidavit filed on behalf of the respondents in the appeal that they are not trying to alienate any properties in question, feeling that there is no need to continue the interim injunction granted on 28-10-1994, in view of that statement, vacated the ex part? injunction, by making it clear that the averment contained in para 15 of the counter-affidavit filed on behalf of the respondents in the appeal is recorded and so if respondents in the appeal were to alienate or alter the nature of the property covered by the suit during the pendency of the appeal A.S.No. 1204 of 1994 in this Court, they would be "doing so at their own peril".

(2.) Against the said order, appellants who are the petitioners in C.M.P.No. 7898 of 2001 filed L.P.A.NO. 16 of 1995. By an order dated 12-8-1996 a Division Bench of this Court in L.P.A.No. 16 of 1995 observing that the statement of the respondents in the counter-affidavit filed before the learned single Judge that they are not trying to alienate the properties is treated as an undertaking that they would not alienate or encumber the suit property during the pendency of the appeal disposed of the appeal confirming the order of the learned single Judge.

(3.) Subsequent to the disposal of L.P.A.NO. 16 of 1995 respondents 1 and 2 in the appeal alienated portions of the plaint schedule property under registered sale deeds dated 3-4-1997 and 25-7-1998 by document No. 1652/1997 in respect of S.No. 659/1F and document No.2719/1998 in respect of 20 cents in S.No. 659/1G and 5.1/2 cents in S.No. 659/1F. After coming to know about the said alienation appellants filed C.M.P.No. 15271 of 2000 in L.P.A. No. 16 of 1995 under Order XXXIX Rule 2-A read with Section 151 C.P.C. to punish respondents 1 and 2 in the appeal for disobeying the order in L.P.A.No. 16 of 1995 dated 16-8-1996. By an order dated 8-9-2000, the said petition was dismissed by a Division Bench of this Court on the ground that as temporary injunction pending disposal of the appeal was granted by a learned single Judge and was confirmed with a modification in appeal cannot be taken as an injunction granted by a Letters Patent Bench, and so Letters Patent Bench cannot pass an order under Order 39 Rule 2-A C.P.C. and dismissed the said C.M.P. with a further observation that dismissal of that C.M.P. cannot be taken to mean that they expressed a view on the question of breach of injunction. Subsequent to the dismissal of the said C.M.P.No. 15271 of 2000 this petition is filed under Order XXXIX Rule 2-A read with Section 151 C.P.C. by the appellants to punish the respondents 1 and 2 in the appeal for their violation of the undertaking given by them.