1. This is an appeal from an order of the First Class Subordinate Judge at Broach refusing to take proceedings against the opponent for contempt of Court. The preliminary objection is taken on behalf of the respondents that no appeal lies.
2. The facts are that in the course of a suit the plaintiffs presented an application to the Court stating that a large aura was due to them from the defendants' firm, that defendant No. 5, who was one of the partners in the firm, had already mortgaged some of his properties and was making arrangements to sell others of them to some other persons, and praying for an order for the attachment of defendant No. 5's 'below-mentioned' immoveable properties before judgment. On this application the defendant stated that he had no intention to sell the property, and gave an undertaking not to sell the same till the disposal of the suit. On this undertaking being given, the Judge passed the following order on January 12, 1927:-
Defendants undertake not to sell this property pendente lite without the order of the Court, See affidavits Exhibits 24 and 25. I therefore do not think it accessory to specifically attach the property. It is understood that this is equivalent to reconvey the property in Court's protection and surveillance so that none else can attach or proceed against the property until further order of the Court.
3. Subsequently before the disposal of the suit defendant No. 5 sold the property, and the plaintiff thereupon applied for proceedings for contempt of Court to be taken against him. The Subordinate Judge refused to take proceedings, and an appeal has been presented against his order.
4. It is contended on behalf of the respondents that no appeal is provided by the Civil Procedure Code against an order refusing to take proceedings for contempt, although it is admitted that if the order had been one granting an injunction an appeal would have lain It is contended on behalf of the appellant that the defendant having given an express undertaking not to sell, and the Court having acted on that undertaking, which was in force during the pendency of the suit, the effect of the undertaking is the same as that of an injunction, and reference is made to Kerr an Injunction, 6th Edition, p. 668, Woodroffe on Injunction pp. 140, 141, and cases quoted there under. Under Order XXXIX, Rule 2, an appeal lies against an order granting or refusing an injunction under Order XLIII, Rule 1 (r.). It is contended that the application made by the plaintiffs was not an application for an injunction, but if it be regarded as an application for attachment, an appeal will lie under Order XLIII, Rule 1(q). The learned advocate for the appellant relies on Abdul Rahiman Saheb v. Ganapathi Bhatta ilr (1900) Mad. 517, Adaikkala Thevan v, Imperial Bank, Madura Branch (1925) 50 M.L.J. 401, and Ram Prasad Singh v. The Benares Bank, Ld. ILR (1910) All. 98 as showing that any order in the nature of an injunction is appealable. There can be no doubt that the undertaking given by the defendant not to dispose of his property during the pendency of the suit read in conjunction with the order of the First Class Subordinate Judge referred to above dated January 12, 1927, has the effect of the grant of an injunction against defendant No. 5 restraining him from disposing of his property during the pendency of the suit. This being so, the order is equivalent to one under Order XXXIX, Rule 2, of the Civil Procedure Code. Now that Order provides not only for the granting of the injunction, but under Clause (3) provides a penalty for breach of the injunction. Under Order XLIII, Rule 1(r), an order made under Rule 2 of Order XXXIX, is subject to appeal. As is admitted, and, as has been held in Suppi v. Kunhi Koya ILR (1916) Mad. 907 an appeal lies from an order declining to order arrest or attachment of property for disobedience of an interlocutory injunction granted under the rule.
5. In these circumstances I hold that an appeal lies against the order, and, therefore, the case must proceed on the merits.
6. As regards the merits, there were two suits against the opponent, the first, which is Suit No. 144 of 1925, was brought by Hiralal Thakorlal, who is also a member of the firm of Chaturbhujdas, which is the plaintiff in Suit No. 184 of 1926, the present suit, the other partners being his father and brother. The plaintiffs, therefore, are practically identical in these two suits. On January 10, 1927, Hiralal obtained a decree against the defendant firm in the other suit, and on January 24, he presented an application for execution by sale of the immoveable property of defendant No. 5. On January 12, 19 7, the order in the present suit was passed already referred to, by which on the defendant undertaking not to sell the property without the order of the Court, no order for attachment was passed, it being understood that the property was under the Court's protection. In the other suit, appeal proceedings went on until the end of July 1928, and on February 9, 1929, opponent No. 2 paid the amount to the decree-holder Hiralal, and on the same day a sale-deed was passed. From this it will appear that twelve days after the property in the present case had been dealt with by the Court in pursuance of opponent No. 1, viz., defendant No. 5's undertaking, an application was presented by the plaintiff in the other suit, who is one of the plaintiffs in the present suit, being a member of the firm along with his father and brother, asking for satisfaction of the decree in Suit No. 144 of 1925 by the sale of properties 1 to 3 which is dealt with by the order of January 12, 1927. If defendant No. 5 had not sold the property privately, it would have been sold by the Court as notice had been given to him and proclamations of sale issued, All this is set out in the judgment of the learned Subordinate Judge No doubt the defendant having; undertaken not to sell the property without the leave of the Court, there was a technical breach by his doing so without informing the Court. But in view of the circumstances in which the property was sold, i.e., to pay off the decree obtained by plaintiff, who is himself a plaintiff in the present suit and had applied for attachment of that very property, I am not disposed to differ from the view taken by the learned Subordinate Judge. The circumstances are very peculiar. It would be a different matter if defendant No. 5 bad sold the property and kept the sale proceeds to himself.
7. It has been argued on behalf of the appellant that all that the appellant seeks is that the sum of Rs. 1,100 out of the purchase price which remains with defendant No. 5 should be attached and that he does not wish him to be sent to jail. The present application must be taken to be under Order XXXIX, Rule 2 (3), of the Code of Civil Procedure. The sale by defendant No. 5 was in a sense forced by the plaintiff Hiralal having taken steps to execute the decree in Suit No. 144 of 1925 against him by the sale of the property.
8. In these circumstances, I do not think there are sufficient reasons for differing from the view of the lower Court, and the appeal will be dismissed with costs, one set.