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Smt. Saraswati Vyas Vs. Pratap NaraIn Vyas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1110 of 1971
Judge
Reported inAIR1977All173
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 39, Rules 1, 2(2) and 2A - Order 43, Rule 1
AppellantSmt. Saraswati Vyas
RespondentPratap NaraIn Vyas and ors.
Appellant AdvocateA. Rathore, Adv.
Respondent AdvocateMaqbool Ahmad, Adv.
DispositionRevision allowed
Excerpt:
civil - penal action for non-compliance of injunction - order 39 rule 2-a and order 43 rule 1 of code of civil procedure, 1908 - rule 2-a of order 39 describes penal action against non- compliance of injunction order - applicable only against order under rule 1 or rule 2 - not extended to order under section 151 - order of no punishment under rule 2-a cannot be appealed against. - .....action in a case of disobedience of an injunction; but it applies to an order issued under rule 1, or rule 2, sub-rule (2). on its term it does not extend to the breach of an order under section 151 of the code. in the present case, the trial court refused to take any action for the alleged disobedience. consequently, it cannot be said that the court passed any order under rule 2-a of order 39. even if we construe the order of the trial court refusing to take action as an order under r. 2-a of o. 39, the difficulty is that an order under r. 2-a of order 39 itself is not made appealable either by section 104 or under clause (r) of rule 1 of order 43. section 104 provides an appeal only against an order imposing a fine or directing the arrest or detention in the civil prison of any.....
Judgment:

Satish Chandra, J.

1. During the pendency of the suit the plaintiff applied that the defendant be called upon to furnish security in the sum of Rs. 700/- for costs of the suit and damages. In the alternative it was prayed that plot No. 20 belonging to the defendant be attached. The defendant Smt. Saraswati Vyas filed an objection in which she, inter alia, gave an undertaking that she will not alienate the said plot. The learned Munsif acceptedthe undertaking and refused to pass any order of attachment. Subsequently the defendant appears to have sold the plot by a registered deed of sale dated 10th May, 1968. Thereupon the plaintiff applied for action being taken against the defendant for disobeying the order of the Court. The trial Court rejected the application, whereupon the plaintiff went up in appeal. The learned Judge Small Causes held that the original order of the Munsif was an order of injunction issued under Section 151 of the Code of Civil Procedure. The defendant had given an undertaking which she had flouted. She was hence liable to be punished. He directed that the defendant be detained in civil prison for a period of 2 months. The defendant has now come up in revision.

2. The principal point urged by learned counsel for the applicant is that the trial Court's order refusing to take action for disobedience was not appealable. Under Order 43, Rule 1, Clause (r) an order under Rules 1, 2, 4 or 10 of Order 39 is appealable. Rules 1 and 2 of Order 39 authorise the granting of temporary injunction. Rule 2-A of Order 39 provides for punitive action in a case of disobedience of an injunction; but it applies to an order issued under Rule 1, or Rule 2, Sub-rule (2). On its term it does not extend to the breach of an order under Section 151 of the Code. In the present case, the trial Court refused to take any action for the alleged disobedience. Consequently, it cannot be said that the Court passed any order under Rule 2-A of Order 39. Even if we construe the order of the trial Court refusing to take action as an order under R. 2-A of O. 39, the difficulty is that an order under R. 2-A of Order 39 itself is not made appealable either by Section 104 or under Clause (r) of Rule 1 of Order 43. Section 104 provides an appeal only against an order imposing a fine or directing the arrest or detention in the civil prison of any person, except where such detention or arrest is in execution of a decree. The conclusion, therefore, is inevitable that an order refusing to take action under Rule 2-A of Order 39 is not appealable under the Code of Civil Procedure. The appeal being incompetent the lower appellate Court had no jurisdiction to interfere.

3. The revision succeeds and is allowed. The order dated 14th September, 1971 passed by the lower appellateCourt is set aside. Since no one appeared on behalf of the opposite parties there will be no order as to costs.


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