BECHNI MAHALI Vs. SHEIKH GAFOOR

JUDGEMENT

(1.) The Defendant of the trial court is Petitioner in this Rule. The Plaintiff is the opposite, party. The suit was instituted in the Second Court of the Munsif at Sealdah as early as on October 3, 1953. On October 6, 1953 the Plaintiff obtained an order of temporary injunction against the Defendant restraining her from making any constructions on the disputed land until further orders of the court. This order was made absolute on July 20, 1954 on the. Defendant's giving an undertaking that she would not make any construction on the disputed land during the pendency of the suit. The suit was transferred to the Additional Court of the Munsif at Sealdah on March 30, 1955, by the order of the District Judge, Thereafter, the Plaintiff put in a petition under Order XXXIX, Rule 2 (sub-Rule 3) of the Code of Civil Procedure alleging that the order of injunction which had been passed on October 6, 1953 had been violated by the Defendant by making unauthorised and illegal constructions on the disputed land in violation of the order of injunction. This application was heard by the learned Munsif of the First Additional Court of Sealdah on September 17, 1955 and on that date he passed an order upon the Defendant to demolish the pucca constructions of walls and rooms within two months from the date of the order. There was a further direction that if the Defendant failed to carry out this order, then the provisions of Order XXXIX, Rule 2 (sub-Rule 3) of the Code will come into operation. No demolition was made by the Defendant and the structures of the Defendant standing on the disputed lands were later on attached and advertised for sale.

(2.) After the property of the Defendant had been advertised for sale, she applied to the Munsif for withdrawing that order. The learned Munsif thereupon passed an order on November 19, 1957 directing the Defendant to pay a sum of Rs. 40 to the Plaintiff by way of compensation for breach of the order of' injunction. It was further ordered by the Munsif that if this amount wag paid, then the property of the Defendant will not be sold. The amount in question was deposited by the Defendant within the time fixed by the Munsif.

(3.) I, accordingly, make the Rule absolute and set aside not only the order of the appellate court but also the order of the Munsif by which he fixed the compensation to be paid to the Plaintiff opposite party.