KAPILDEO UPADHYA Vs. RAGHUNATH PANDEY

JUDGEMENT

(1.) This revision Is directed against the order dated 1-3-1974 passed by the Munsff of Aurangabad, by which the petitioners have been ordered to be detained in civil prison for one month under Order 39, Rule 2 (3) of the Civil P. C.

(2.) In order to appreciate the point it will be necessary to state some facts. The plaintiffs-opposite party had brought title suit No. 107 of 1973 before the learned Munsif on 11-7-1973 for a declaration that they are the owners and are in possession of plot No. 2059 having an area of 5 decimals of land in mouza Goh in the district of Aurangabad and the petitioners have no right to make any encroachment over the said land. During the pendency of the suit an application was filed by the opposite party for injunction on 12-7-1973 and on the same date petitioners were injuncted from making any construction over the land described above which was served on the petitioners on 15-7-1973. It was alleged by the plaintiff that on 22-7-1973 the petitioners had constructed a wall which was about 1 ft. high from the ground in spite of the fact that order of injunction was served on them. A petition for taking action against the petitioners was actually filed on 24-7-1973 and the petitioners were asked to show cause. The petitioners filed their show cause on 15-9-1973 stating inter alia that there was no valid service of notice and petitioner No. 2 was serving at Darbhanga and petitioner No. 4 was in service at Dhanbad and petitioner 5 was a student studying at Gaya. The learned Munsif examined witnesses and after hearing both parties held that the petitioners had deliberately disobeyed the order of the court in spite of the order of injunction had been served on them and directed that they should be detained in civil prison for one month. Being aggrieved by the aforesaid order the petitioners and Rambriksha Upadhya preferred an appeal which has been dismissed by the Additional Subordinate Judge 1st Court, Gaya, on 23-2-1975. A petition under Section 115 of the Code of Civil Procedure was filed on behalf of the petitioners against the order of the learned Subordinate Judge and in that application the name of Rambriksh Upadhya was expunged.

(3.) This matter was placed before the learned Single Judge of this Court who has referred it to the Division Bench and that is how !t has been placed before us. From the aforesaid order it seems that a point was raised on behalf of the petitioners that no order for sending a person in civil prison can be made unless the land is attached which according to the learned counsel is a condition precedent. It would be better to quote Order XXXIX Rule 2 (3) which runs thus :