SATYENDRA NATH BANERJEE Vs. ARATI BANERJEE

JUDGEMENT

(1.) HEARD the learned Advocates appearing for the parties.

(2.) ASSAILING the order dated 29th July, 2005 passed in Miscellaneous case No. 11 of 2003 arising out of Miscellaneous Appeal No. 63 of 2001, passed by the learned Additional District Judge, 1st Fast Track Court, hooghly this application under Article 227 of the Constitution of India has been filed. By the impugned order the learned Court below allowed the application filed under Order 39 Rule 7 of C. P. C for appointment of a commission to hold the inspection of the suit property, being an application filed in a proceeding under Order 39 Rule 2a of C. P. C. on the allegation of violation of the order of status quo as passed in the said Miscellaneous appeal. It is an admitted fact that the concerned Miscellaneous Appeal No. 63 of 2001 was dismissed whereunder the order of status quo was passed which became subject matter of the application under Order 39 Rule 2a of the said Code on 8th September, 2003. Against that dismissal of miscellaneous Appeal, the revisional application was filed registered as c. O. No 2882 of 2003 which stood dismissed. The application under Article 227 of the Constitution of India was filed in the High Court which was dismissed on 9th March, 2004. A review application was filed registered as review No. 1227 of 2004 which was also dismissed on 21st April, 2005. A division Bench of this Court wherein I was a member as Presiding Judge, in the case of Heinz India Private Limited and another v. Glaxo Smithkline consumer Healthcare Limited and Ors. , being A. P. O. T. No. 408 of 2006, reported in (2008)2 WBLR (Cal) 488 passed a judgement on 31st January, 2008 dealing with the conceptual and contextual ingredients of an application under Order 39 Rule 2a of C. P. C. and on critical analysis of the two provisions of the law, namely, the application for contempt under the contempt of Courts Act alleging deliberate and wilful violation of the Court's order and the application seeking implementation of the order of injunction in terms of Order 39 Rule 2a of the said Code. It was held therein relying upon the order of the Apex Court as referred to therein that the two proceedings are completely different having different degree of applicability and the degree of adjudicatory process. There it is held that under Order 39 Rule 2a of the said Code, the proceeding is nothing but a execution proceeding to implement the order of injunction on the pain of order of attachment and/or imprisonment to jail for three months maximum, as the case may be. The purpose and context of the said provision has been discussed in details by holding that Order 39 Rule 2a application is only for the purpose of execution of the order of injunction and such application will face its natural death as and when there will be no existence of violation of such injunction order either by complying with the order in the meantime or non-existence of such injunction order at the material time when the application to be considered for hearing.

(3.) IN this present case it is an admitted fact that the Miscellaneous appeal was dismissed. It is the basic principle of law that the interim order merges with the final order as is passed in any proceeding. Hence the order of status quo as passed on 7th February, 2003 in the Miscellaneous Appeal merged with the order of dismissal of the Miscellaneous Appeal and with effect from the date of dismissal, in the eye of law there was no order of sfatus quo existing.