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Ottapurakkal Thayath Suppi and ors. Vs. Sayid Alabi Masaber Alias Koya Kunhi Koya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1916)30MLJ523
AppellantOttapurakkal Thayath Suppi and ors.
RespondentSayid Alabi Masaber Alias Koya Kunhi Koya
Cases ReferredSee Eastern Trust Co. v. McKenzie Mann and Co. Ltd.
Excerpt:
- .....all cases, where the liberty of the subject is concerned, to prevent the right being taken away by rules passed. by superior courts by virtue of their rule making power. in the absence of such a provision in the body of the code it would be possible for the high courts after consulting the rule committees, to abolish the right of appeal in the cases provided for by order 43 rule 1 including orders under order 38 rule 4 and order 39 rule 2 clause (3). the argument of mr. rozario if correct leads to this result. that an order passed by the first court for attachment of the property and its sale is not appealable as also orders declining to commit or to attach property. in england it is now settled that an appeal lies in cases where the first court declines to order committal or.....
Judgment:

John Wallis, C.J.

1. The main question in this appeal is whether under Order 43, Rule 1(r) an appeal lay to the District Court from the refusal of the District Munsif to take action under Order 39, Rule 2(3) for an alleged breach of a temporary injunction granted under Order 39, Rule 2(2). It is quite clear that an appeal lay in a similar case under Section 94 of Act VIII of 1859, and also under Section 588(24) of the Code of 1882, which corresponds to Order 43 Rule 1(r); and that such appeals lay not only from orders in exercise of the powers conferred by the section but also from orders refusing to exercise such powers. It is also clear that refusal by the Court to take action on the breach of an injunction might seriously prejudice the party in whose favour the injunction had been granted, and it is said to be unlikely that the Legislature in intended to affect such right of appeal when it recast the language of Section 493 of the old Code when re-enacting it in the present Code. The alteration is that, whereas in Section 493 it was provided generally that in case of disobedience the injunction might be enforced by imprisonment or attachment, it is provided in Order 39 Rule 2(3) that 'the Court granting the injunction' may order the attachment or imprisonment and it is said that these words constitute a prescribed limitation under Section 107 of the power which the Appellate Court would otherwise have under that section to pass the order which might have been passed by the Court of First Instance. In support of this contention attention was called to Section 104(b) which provides for an appeal from an order under any of the provisions of the code imposing fine or detention otherwise than in the execution of a decree and to the provision in Section 104(2) that no appeal shall lie from any order passed in appeal under this section which by virtue of Sub-section (1)(b) includes orders made on appeal under Order 43(1)(r); and it was suggested that the alteration in Order 39 Rule 2(3) was introduced to prevent an order of imprisonment being made by the Appellate Court from which there is no further appeal under the section. If however this was the object of the alteration, it goes further than was necessary, as the rule would equally prohibit appeals from a refusal to order attachment. Further, if it had been desired to restrict the right of appeal from orders under Order 39 Rule 2 in this way, nothing would have been easier than to say so expressly in Order 43(1)(r) which is the provision dealing with appeals from orders under the rule in question instead of in Order 39 Rule 2 which dells' with original orders. It is not in my opinion permissible to read the words 'the court granting the injunction' as restricting the right of appeal, unless they would otherwise have no effect, whereas they may have the effect of preventing original applications in respect of breaches of injunction being made to any other Court than that which granted the injunction, as for instance in the case of the injunction having been granted by the original court and the breach having occurred after an appeal had been perferred or possibly after the case had been transferred.

2. As regards the other points taken, whereas here the injunction was disobeyed and the application to commit was put in while the suit was pending, but the order was made after the suit was dismissed, that does not in my opinion affect the powers of the court to take action for the breach. Lastly there is in my opinion no foundation for the contention that the court can only make an order of imprisonment after an order of attachment.

3. I am therefore of opinion that the appeal lay to the District Judge and that he had jurisdiction to pass the order. Mr. Justice Miller has refused to revise that order and I am not prepared in this case to interfere in appeal with the exercise of his discretion. In the result the appeal is dismissed with costs.

Abdur Rahim, J.

4. I agree.

Srinivasa Aiyangar, J.

5. Three points are raised by Mr. Rosario in this appeal (1) that no appeal lies from the order of the District Munsif declining to order arrest or attachment of property for desobedience of an interlocutory injunction (2). That when the Appellate Court interfered, the injunction had ceased to exist by reason of the dismissal of the suit in the First Court. (3). That the Court had no right to order arrest and imprisonment without first ordering attachment of property.

6. General jurisdiction to make interlocutory orders pending suits is conferred by Section 94 of the Code. Detailed provision for the exercise of such jurisdiction is to be found in Orders 38, 39 and 40. Order 39 relates to interlocutory injunctions. General jurisdiction to entertain appeals from orders is conferred by Section 104 of the code. Order 43, Rule 1 makes provision for appeals from orders made under rules as provided for in Clause (i) of Section 104. Under Clause (r) of Rule 1 of Order 43, an appeal is allowed from an order under Rule 2. The injunction in the present case was granted under Order 39, Rule 2 by the District Munsif. The application for arrest and attachment was also made under Clause (3) of Rule 2 to the court which granted the injunction (i.e., the Munsif). The order in question passed by the Munsif declining to order arrest or attachment under Clause (3) of Rule 2 is obviously an order under Rule 2 and would therefore be appealable. But it was argued that the introduction of the words 'the court which granted the injunction' in Clause (3) of Rule 2 showed that an order under that clause can only be passed by the court which granted the injunction and no other court even in appeal can do so. This construction ignores the fundamental rule that an Appellate Court only passes the order which the First Court should have passed. In many cases applications are made and in all cases suits filed in trial courts, whose duty it is to pass orders or make decrees, and in appeals, where' the Appellate Courts interfere, they only pass such orders as the First Court should have passed. (Section 107C. P.C.), The introduction of the words 'the court which granted the injunction' in the new Code, words which are not to be found in the corresponding Section 493 of the old Code, is merely due to the change in the method of drafting. It is to be observed that the words 'may be enforced' found in Section 493 have been omitted in the corresponding rule and the omission has necessitated the re-drafting of the rule in the form in which it stands. An order for attachment of the property or imprisonment of the person of a party guilty of disobedience of an injunction is not strictly speaking enforcing the order of injunction. It is really a punishment for past disobedience. That was probably the reason for the omission of the words. Full scope can be given to the words 'Court granting the injunction' by construing them as applicable to the original petition. For example if an injunction is granted by an Appellate Court, pending an appeal from a decree, the application to enforce that injunction in the case of breach, could be made only to the Appellate Court; for in that case the trial court before whom no action is pending would not be in a position to entertain an application. That must be the result even under the old Code. It is clear that disobedience of an order of injunction passed in appeal could not be punished by the Court which tried the suit as Section 36 or 37 corresponding to Section 649 of the old Code does not apply. Where the business of one court is transferred to another, the court to which the business is so transferred, may, I think, under Section 150 entertain an original application for attachment or arrest under Clause (3) of Rule 2 of Order 39. Attention was drawn to Section 104 which provides an appeal in cases of fine and imprisonment. That provision was made in the body of the code in analogy to the Judicature Act of 1894 which allows an appeal without leave in all cases, where the liberty of the subject is concerned, to prevent the right being taken away by rules passed. by superior courts by virtue of their rule making power. In the absence of such a provision in the body of the code it would be possible for the High Courts after consulting the rule committees, to abolish the right of appeal in the cases provided for by Order 43 Rule 1 including orders under Order 38 Rule 4 and Order 39 Rule 2 Clause (3). The argument of Mr. Rozario if correct leads to this result. That an order passed by the First Court for attachment of the property and its sale is not appealable as also orders declining to commit or to attach property. In England it is now settled that an appeal lies in cases where the First Court declines to order committal or sequestration of property, See Jarmain v. Chatterton (1882) L.R. 20 Ch. D. 493 though of course the Appellate Court would not ordinarily interfere with the discretion exercised by the First Court.

7. The view which I have set forth above is fully supported by a passage in High on Injunctions Section 1431 where the learned author says 'An appeal from a final injunction does not suspend its operation and the doing of the act enjoined may be punished as a contempt, notwithstanding such appeal. And an appeal from an injunctional order does not deprive the court granting the writ of the right to punish for contempt for its violation, and the Lower Court and not the revising court is the proper tribunal to entertain such proceeding where the Court of Appeals of the State has jurisdiction to grant a supersede as to an order of an inferior court dissolving an injunction, and defendants after the granting of such supersede as, proceed to the commission of the act forbidden by the injunction, such action is a contempt of the Court of appeals and may be punished upon proceedings in that Court.'

8. As regards the second question, the breach of the injunction occurred when the injunction was in force, and also when the application was made. The dissolution of the injunction owing to the dismissal of the action which happened long after the application could in no way excuse the party who had already disobeyed it. See Eastern Trust Co. v. McKenzie Mann and Co. Ltd. (1915) A.C. 750.

9. As to the third point I think in spite of the difference in the language the meaning is the same. The court can in its discretion order either arrest or attachment of property and is not bound in the first instance to attach and then only order imprisonment. Mr. Rosario's argument leads to this result: - That the court has power to order attachment alone or attachment and imprisonment alone. It is to be observed that the contention is not, that it is only if the attachment proves infructuous, in compelling future obedience, the writ of committal is to be issued. In England the usual order in cases of disobedience of an injunction by natural persons is attachment of the person or committal while sequestration is the usual order passed in cases of disobedience by corporations. (See Oswald on Contempt, page 223). The former practice seem to have been that unless there was a previous issue of a writ of attachment sequestration will not issue, but now attachment and sequestration may issue concurrently. I therefore agree in the order proposed.


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