NETAI CHANDRA GHOSE Vs. PHANI BHUSAN BISWAS

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 195 dated February 18, 1972 passeed by Sri R. L. Mukherjee, Subordinate Judge, 9th Court at Alipore in Misc. Case No. 96 of 1967 arising out of Title Suit No. 100 of 1967.

(2.) The facts of the case may briefly be stated as follows :--

(3.) The petitioner instituted Title Suit No. 100 of 1967 for declaration of title, recovery of khas possession and injunction. The petitioners subsequently filed an application under Order 39, Rules 1 and 2 of the Code and the opposite parties were restrained by an order of ad interim injunction from raising any construction on the suit land. The said order was served upon them on 13th November 1967. In spite of service of ad interim injunction the opposite parties started to raise construction. Thereafter the petitioners filed an application under Order 39, Rule 2 (3) of the Code for attachment of the properties. The said application was registered as Misc. Case No. 96 of 1967 and an order of attachment was passed on 13th of July 1968. Thereafter the learned Subordinate Judge on 14th of February 1970 passed an order for sale of the attached properties under Order 39, Rule 2 (3) of the Code and it was ordered that out of the sale proceeds 3/4th thereof should be awarded to the petitioners as compensation and the balance should be paid to the opposite parties. On 18-11-1971 the opposite parties filed an application under Section 151 of the Code for setting aside the order for sale. The said application was heard in presence of both the parties and by an order No. 195 dated 18-2-1972 the learned Judge vacated the order dated 14-2-1970 and set aside the order for sale of the properties. It is stated that though the injunction order was served on 13-11-1967 the opposite parties continued construction even upto 22-4-68 which will appear from the second inspection report. As such the violation of injunction order continued for several months. Being aggrieved by the order dated 1-8-2-72, the petitioners have come up before this Court.