GIRIDHARI Vs. GOLAKA CHANDRA

JUDGEMENT

(1.) This appeal by the defendant in a suit for partition arises out of an order of the trial court finding him guilty of disobedience of an order of injunction dated 15-12-1979 by which he was restrained from going upon the disputed land. An application alleging disobedience of that restraint order was filed by the plaintiff stating that the appellant had gone upon the land on 2-2-1980 and uprooted the Biri crop causing a loss of Rs. 150/- to him. The appellant, however, denied the allegations. On appreciation of the evidence adduced by both the parties, the learned Subordinate Judge decided the matter against the appellant and held him guilty of violation of the order of injunction. He accordingly directed attachment of his landed property of the value of Rs. 500/- for a period of one year.

(2.) Earlier, when the appeal was taken up before a single Judge of this Court, the appellant, on the basis of a decision of this Court in the case of Roshanlal Thakur v. Kishanlal Kapoor, (1976) 42 Cut LT 1091 : (1977 Cri LJ NOC 23), submitted that in the absence of the list of properties to be attached and willingness of the plaintiff to pay the expenses for sending the defendant to civil prison, the application of the plaintiff under Order 39, Rule 2-A of the Code of Civil Procedure ('Code' for short) was to be dismissed. The learned Judge entertained doubt regarding the correctness of the aforesaid decision and referred the matter to a Division Bench and thus this appeal has been placed before us for hearing.

(3.) Learned counsel for the appellant was not in a position to make any argument in support of the correctness of the decision. Rule 2-A of Order 39 of the Code does not prescribe either of the requirements, i.e. either to furnish the details of properties to be attached or to indicate the willingness of the applicant to pay the expenses for sending the offender to civil prison, while making the application. All that the Rule prescribes is that in case of disobedience of any injunction granted or order made under rule 1 or 2 of Order 39, or breach of any of the terms on which the injunction was granted or the order was made, the court concerned may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months. In the reported case, we do not find much discussion for taking the view that it was necessary for the applicant to submit a list of properties to be attached or express his willingness to pay the expenses for sending the offender to civil prison, much less any authority has been noticed for taking that view. It appears to be just an observation or view expressed by the learned Judge which has been made prominent in the head note of the report.