ARJUN JENA Vs. BRAHMANANDA PANI

JUDGEMENT

(1.) THIS is an application under Section 115 of the Civil Procedure Code for revision directed against an order of the Additional District Judge, Cuttack, setting aside the order of the learned Munsif, 2nd Court, Cuttack, directing the proparties of the defendants up to the value of Rs. 500/- to be kept under attachment until further orders.

(2.) THE facts shortly stated are as follows: The petitioners in the present application as plaintiffs Drought a suit against the opposite parties being T. S. No. 275 of 1953 in the Court of the Munsif, 2nd Court, Cuttack for declaration of their title and confirmation of possession and also for permanent injunction against the defendants-opposite parties restraining them from interfering with the possession of the petitioners. On 5-11-1953, on the application of the plaintiffs-petitioners the trial Court passed an interim order of injunction against the opposite parties restraining them from harvesting the paddy crops standing on the disputed land and from felling and cutting mango trees and bamboo clumps and from doing any other act of misfeasance on the disputed land and called upon them to show cause why the order should not be made absolute pending disposal of the suit. On 26-11-1953 the defendants-opposite parties appeared and submitted a written objection in the interim injunction matter. While the matter was still pending in Court on 29-11-1953 the opposite parties forcibly and in disobedience of the interim injunction issued by the Court cut and removed crops from the suit land. The following day the petitioners brought this fact to the notice of the Court by their application being Misc. Case No. 316 of 1953. On 20-2-1956 the learned Munsif passed an order holding that the defendants-opposite parties had disobeyed the Order of injunction and directed attachment of certain properties belonging to the opposite parties and he found them liable under Order 39. Rules 2 and 3 of the Civil Procedure Code. Immediately, thereafter an appeal was filed against the said order of the learned munsif to the District Judge, Cuttack. On 6-4-1957 the appeal was disposed of by the Additional District Judge setting aside the order of the learned Munsif. Thereafter, on 15-7-1957 the present application for revision was filed against the order of the Additional District Judge.

(3.) THE main point for consideration in this application is whether service of notice of injunction was necessary and whether the defendants opposite parties had knowledge aliunde of the injunction order. The legal position has been well summarised by Oswald in his book on Contempt Third Edition, pp. 203-204. In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde and knew that it was intended to be enforced and that is sufficient. In re Tuck; Murch v. Loosemore, (1906) 1 Ch 692 (A) Cozens-Hardy LJ in his judgment while explaining in this context the wide distinction between an order of injunction not to do a thing of which notice can be proved to have reached a defendant and an order commanding the defendant to do something within a definite time, held that Order XLI, Rule 5 of the Rules of the Supreme Court deals only with an order of the latter class and for the protection of the liberty of the subject, requires the indorsement of a Memorandum warning the defendant that the consequence of not complying with the order may be the issue of an attachment and further held that there is no such requirement where the order is prohibitive only, as in the present case before me. The principles of the English decisions were also followed in Indian High Courts.