JANG BAHADUR SINGH Vs. CHHABILA KOIRI

JUDGEMENT

(1.) The petitioner was one of the defendants to mortgage Suit No. 135 of 1932, which was based upon a simple mortgage bond executed by petitioner and his father and the suit was for realisation of Rs. 1,699-2.0 by the sale of the mortgaged and other properties. The plaintiff applied for an injunction under Order 39, Rules 1 and 2 against waste of the security through the petitioner and his son cutting trees from the orchard representing the mortgaged property. The Munsif granted ad interim injunction restraining the petitioner and two other defendants from cutting the trees and removing the timber of trees already cut. Eventually on 3 January 1934, plaintiff represented to the Court that the petitioner and his father were cutting the trees of the orchard in spite of the injunction and asked that they be detained in the civil prison. The Munsif committed the petitioner and his father to the civil prison for four months or till they express their regret to the Court and compensate plaintiff for the loss incurred by him.

(2.) The learned Munsif does not specify the provision under which his order was passed; but the District Judge on appeal which was dismissed, mentions Order 39, Rule 2, Clause (3), Civil P.C. I issued the rule to show cause why the order of the Munsif should not be set aside on the basis of Dalal, J.'s decision in Balbhaddar v. Balla 1930 All 387 where he observed:

(3.) Through some inadvertence no penalty appears to be provided in Order 39 for the breach of an injunction. It seems likely that the provisions of Rule 2(3), Order 39 were intended to be applied to a breach of an injunction under Rule 1 also, but as Clause 3 is included under Rule 2 it would follow that the provisions of that clause will not apply to Rule 1.