MATADIN GARWAL Vs. SYED ABDUL RAZACK

JUDGEMENT

(1.) .This Letters Patent Appeal is filed against the order dated 3-8-1993 made in Review C.M.P. No.7256 of 1993. The appellant filed a suit for specific performance of the agreement of sale dated 27-6-1978. The suit was filed on 1-9-1981. The suit was partly decreed granting alternate relief of recovery of money. Challenging the said Decree, C.C.C.A. No.47 of 1990 was filed. Pending the appeal, .the appellant obtained interim injunction in C.M.P. No.9018 of 1990 dated 5-7-1990 restraining the respondent from alienating the plaint schedule property. Many attempts were made to serve the order of injunction on the respondent through registered post, through process server of the Court and also by substituted service. The case of the appellant is that the respondent evaded to receive the notice. As the respondent executed four registered sale deeds dated 10-9-1990; 14-9-1990; 4-11-1990 and 22-11-1990, the appellant filed an application inC.M.P. No.6727 of 1991 under Order XXXIX Rule 2-A of C.P.C for punishing the respondent and to commit him to civil imprisonment for violation of the injunction order. The said application came before our learned brother Justice J. Eswara Prasad on 8-4-1993. The learned Judge on consideration of the Commissioner's report and also all the material circumstances, finally held as follows:

(2.) Questioning this order, the respondent filed L.P. Appeal No.94 of 1993 on 16-4-1993. When the L.P.A. came up for admission at his request the matter was adjourned by two weeks. Meanwhile, he filed the present application 21-4-1993 to review the order passed by, the learned Single Judge. The respondent has withdrawn the L.P.A. in June, 1993 and accordingly it was dismissed. The review petition came up before the learned Judge on3-8-1993. On 27-7-1993, the respondent filed a memo into the Court stating that he is prepared to deposit Rs.75,000/- which, according to him, roughly represents the sale consideration for the four documents. The learned Judge observed in the impugned order that he is not convinced that the petitioner therein has made out grounds for review of the order on merits. Having observed thus, he however, modified the order of punishment from imprisonment of three months to attachment of an amount of Rs.75,000/- deposited by the respondent. It is this order that is challenged under this L.P. Appeal.

(3.) Sri K.F. Baba, learned Counsel for the respondent takes a preliminary objection that the L.P.A. is not maintainable. He cites a Full Bench decision of this Court in M. Agaiah vs. Mohd. Abdul Kereem. Basing on the said decision he submits that amis take or error or defect corrected in review cannot be a subject matter of the Letters Patent Appeal. He relies upon the following observations made by the Full Bench in the said decision: