KRISHNA KUMAR TIBREWAL Vs. SHEO NARAYAN PRASAD

JUDGEMENT

(1.) HEARD.

(2.) IN a partition suit at the stage of final decree preparation there was apparently some compromise. Defendant Nos. 1 and 2, while the final decree preparation was going on by registered sale deeds, dated 10.1.1989, 9.3.1989 and 12.3.1989 sold part of the property under partition to defendant who is the petitioner before this Court. IN this view of the matter this defendant along with other vendees were made defendant Nos. 4 to 8 and an application for injunction praying for injuncting defendant Nos. 1 and 2 from alienating the property was filed by the plaintiff-opposite party. By order dated 11.4.1989 the trial court passed an order of injunction. Subsequently, on 7.1.2005 an application purporting to be one under Order XXXIX, Rule 2A Sub-rule 2 of the Code of Civil Procedure read with Section 151 CPC was filed by the plaintiff alleging that defendant Nos. 4 to 8 including the petitioner before this Court had violated the injunction order dated 11.4.1989 and as such, were liable to be punished. Defendant-petitioner appeared and filed an application questioning the maintainability of the said application and Page 1756 prayed that the said question be decided as a preliminary issue. By the impugned order dated 12.9.2005 passed in the said miscellaneous case the learned Sub Judge II, Jhanjharpur has rejected the application of the defendant-petitioner holding that the question whether the proceedings were maintainable or not are mixed question of fact and law. The same would require detailed evidence and, as such, could not be decided as a preliminary issue. For the purposes of passing the liability of disobedience of injunction order on defendant Nos. 4 to 8 the court has placed strong reliance on the judgment of this Court in the case of Ram Prasad Singh v. Subodh Prasad Singh and Ors. sine .

(3.) THE English is simple. THE order is unambiguous. It clearly restricts defendants 1 and 2 from alienating the property. THE order operates in future. It is prospective in nature. No sane- minded person can dispute this. If this is taken into consideration it would be seen that the sale deeds had already been executed in the previous month. Alienation has already been made. THE vendees were added as a party and were before the court but no injunction was issued as against them in any manner. THE injunction was limited to defendants 1 and 2. On the face of it, it is absurd to even suggest that defendants 4 to 8 were bound by any injunction, much less by the order dated 11.4.1989. This is sufficient to quash and set aside the impugned order and hold that the application filed under Order XXXIX, Rule 2A Sub-rule 2 CPC is not maintainable and ought to have been rejected summarily.