RAM KRISHAN Vs. BEHARI LAL

JUDGEMENT

(1.) THIS is a civil revision. The facts leading up thereto are these. The respondent, Behari lal brought a civil suit for possession against one Mst. Paroo in the court of Sub Judge Jammu. The suit was decreed exparte against Mst Paroo on 17 -4.71. Mst. Paroo filed an application for setting aside exparte decree. By a separate application she prayed that the execution proceedings be stay. This was so on 15 -5 -71. The court by an order even date, stayed the execution proceedings a directed that the warrant of ejectment be recall On 7 -6 -71 one, Ram Krishan, made an application alleging that Mst. Paroo had died on the night intervening 30/31st May, 1971 leaving the applicant as her only heir and successor and claimed to impleaded as a party in her place. Alongside he submitted another application alleging that despite orders of stay, of which the decree holder was formed on spot, he obtained possession and there disobeyed the orders of the court and prayed the possession be restored to him and that the decree holder be punished for disobedience of the orders the court. Notice of this application was given to the other side who filed objections to it. Mean while Ram Krishan filed another application 24 -6 -1971 alleging that the decree holder was raising construction over the disputed property and claim that a temporary injunction be issued restraining him from raising any construction or otherwise altering the disputed property. The court issue the temporary injunction subject to the objection of other side which were filed in due course. Eventually by his order dated 31.8.1971 the learned Sub Judge vacated the temporary injunction and also declined to take any action for disobedience against the decree holder holding that the decree holder had no knowledge of the stay order nor also was it officially communicated to him. The petitioner has come in revision to this court against the latter part of the order.

(2.) THERE can be no doubt that the order of stay of execution has the effect of the grant of an injunction against the plaintiff decree holder restraining him from taking delivery of possession of the disputed property. It was clearly passed by the court below as the court of first instance in view of the application by the defendant for setting aside the exparte decree. The order purports to have been passed by the court under section 151 CPC as it is not one covered by Order 39. As observed in Rattu Vs. Mala (AIR 1968 Raj. 212). It is settled law that disobedience of an order of injunction is punishable under Rule 2(3) of Order 39 whether injunction is granted under Rule I or Rule 2 of Order 39 or under section 151 CPC."

(3.) UNDER Order 43 Rule l(c) an order made under Order 39 Rule 2 is appealable. The order in question passed by the learned Sub -Judge declining to proceed for disobedience under clause (3) of Rule 2 is obviously an order under Rule 2 and could, therefore, be assailed in appeal and not in revision, as rightly argued by the learned counsel for the respondent. But it was contended by the learned counsel for the petitioner that no appeal could lie because Order 43 Rule l(r) provides for an appeal only against an order under Order 39 Rule. 2 whereas the decision of the learned Sub Judge was refusal to pass such an order. This contention crores the principle that power to make an order includes the power to refuse to make such order unless that power is excluded expressly or by necessary implication. No such limitation can be read in Rule2 of order 39. Accordingly the power proceed for disobedience of an interlocutory order of injunction under clause 3 of Rule 2 of order 39 carries with it the power to decline to proceed for such disobedience. An order refusing proceed for disobedience would, therefore, be squarely covered by clause 3 of Rule 2 of Order That being so, appeal would lie against such order under Order 43 Rule l(r). The contention to the contrary raised by the learned counsel for petitioner must be rejected. In that view I need not examine the order on merits.