PRABHAT KUMAR Vs. ANIL KUMAR

JUDGEMENT

(1.) THIS order shall also govern the disposal of MA No. 224/ 2002 as both the appeals are arising against the order dated 22.1.2002 passed by Additional District Judge, Bhanpura District Mandsaur in MJC NO. 21/2000, whereby the application filed by the respondent No. 1 under order 39 Rule -2 -A read with Section 151 CPC has been allowed and the appellants in both the appeals are directed for imprisonment for a period of three months, on account of breach of order dated 10 -11 -1998 passed in Civil Suit No. 11 -A/98 in addition to attachment of the suit property.

(2.) SHORT facts of the case are that appellants are members of Undivided Joint Hindu family, Respondent No. 1 filed the suit for partition, possession and mesne profit, which was numbered as Civil Suit No. 11 -A/98 in the court of Additional District Judge, Bhanpura, District Mandsaur. In that Civil Suit respondent No. 1 also moved applications under Order 39 Rule 1 and 2 read with Section 151 and also under order 40 Rule 1 CPC wherein various prayer were made to protect the property. The applications filed by respondent No. 1 were disposed of vide order dated 10 -11 -1998, whereby the application for appointment of Receiver was dismissed and the appellants herein were directed not to alienate the suit property. It was also directed that the appellants should furnish the security for a sum of Rs. 5 lacs and an undertaking to the effect that the appellants shall comply with the judgment and decree which shall be passed by the learned court below, ultimately, It was also directed that appellant shall keep the accounts and shall submit the copy of the balance sheet of profit and loss in the Court and if the accounts are being audited then the audited balance sheet be submitted. Since, the order passed by the learned court below dated 10 -11 -1998 was not complied with, therefore respondent No. 1 moved an application under Order 39 Rule 2 -A CPC for breach of the order which was numbered as MJC 21/2000. This petition was opposed by the appellant. After the trial, by the impugned order the appellants were punished. Being aggrieved, the present appeal has been filed. Shri B.L. Pavecha, learned senior counsel for the appellants submit that the application filed under Order 39 Rule 2 -A CPC itself was not maintainable as the application for breach of the order can be filed against the order of injunction passed under Order 39 Rule 1 and 2 CPC. It is submitted that since no order has been passed under Order 39 Rule 1 and 2 CPC, therefore, no application for breach of the order is maintainable. For this contention the reliance has been made on a decision of Calcutta High Court reported in Vol. XVII Indian Cases, 361 in the matter of Sito Mahton Vs. F.F. Christien, wherein Division Bench of Calcutta High Court has held that. the order appealed against did not grant a temporary injunction nor did it stay and prevent the wasting of the property, that it was not an order contemplated by Rule 1 of Order XXXIX and that, therefore, it was not appealable under clauses (r) of Rule 1 of Order XLIII.

(3.) LEARNED counsel for the appellants further submit that at the most, it can be said that the order was passed under Clause -(e) of Section 94 of the CPC, therefore, the petition filed by the respondent No. 1 before the court below under order 39 Rule 2 -A CPC itself was not maintainable and hence deserves to be dismissed. Learned counsel for the appellants further submit that even if it is assumed that the impugned order was passed under Order 39 Rule 1 and 2 CPC and the application filed under Order 39 Rule 2 -A CPC was maintainable, then too the impugned order deserves to be set aside on the ground that the appellants are the near relatives of the respondent No. 1 as all of them are members of one family. It also deserves to be set -aside on the ground that the impugned order was complied with as all the accounts were submitted by the appellants before the learned court below. Learned counsel submits that at the most it can be said that it was a case of delayed compliance and not the case of non -compliance. For taking a lenient view the learned counsel for the appellants placed reliance on a decision reported in ( : 1998) 7 SCC 59, Samee Khan Vs. Bindu Khan. Wherein the High Court in a case where the order to maintain status -quo in respect of suit property was passed held that since obstruction subsequently removed and unconditional apology tendered by defendant before the court, held it was not necessary to put the defendant in civil prison.