C M GANAPATHI Vs. T K GOKULAPALAN

JUDGEMENT

(1.) THE appellant herein is the plaintiff in O. S. No. 263 of 1987. He filed the suit against the defendant for recovery of money. Along with the suit he also filed an interlocutory application under Order 38, Rules 1 and 5 of C. P. C. , for attachment of properties of the defendant. Further, he filed another interlocutory application for appointing an Advocate-Commissioner for making inventory of the movable property. An Advocate-Commissioner was appointed and he made an inventory and filed his report. While so, the plaintiff filed I. A. No. 355 of 1991 under Order 39, Rule 2-A of the C. P. C. to commit the defendant to civil prison complaining that the defendant had disobeyed the temporary injunction order granted on 25-9-1987. The said application was dismissed. Against this order of dismissal the present appeal is filed by the appellant-plaintiff.

(2.) TEMPORARY injunction was granted on 25-9-1987 restraining the defendant from alienating the movable articles. The plaintiff filed an application for appointment of Advocate-Commissioner for again making inventory. The Advocate-Commissioner did not find some of the articles mentioned in the first inventory list. Basing on the report of the Advocate-Commissioner the petitioner filed the application under Order 39, Rule 2-A of the C. P. C. on the ground that the defendant violated the injunction order.

(3.) THE temporary injunction order shows that it was to have effect from the date of passing of that order to the date of disposing of the application filed under Order 38, Rules 1 and 5 of the C. P. C. for attachment for the property of the defendant. The application for attachment was disposed of on 12-11-1987 recording an undertaking by the defendant not to alienate the property. The lower Court observed that the plaintiff-petitioner had alleged that there was violation of the temporary injunction order but did not allege any violation of the undertaking and further observed that the application under Order 39 was filed along after the expiry of the temporary injunction order. On that ground the lower Court dismissed the application under Order 39 of the C. P. C.