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

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1914)26MLJ37
AppellantOttapurakkal Thayath Suppi and ors.
RespondentSayid Alabi Masaber Koya Alias Koya Kunhi Koya
Cases ReferredVenkatasami v. Stridavamma I.L.R.
Excerpt:
- .....contention is based on the words ' and may also order such person to be detained ' in order 39 rule 2 sub-rule 3; and it is contended that that means that in addition to the attachment the court may order such person to be detained in the civil prison and inasmuch as there is no attachment in this case, the order for detention is illegal and is an order which i must correct under section 115. i have had some doubt but on the whole i think it is not so. though the language of the present code is changed the change has not, i think, effected a change of the law at any rate so as to make it first to order attachment before ordering commitment. the phrase ' may also commit' means, i think, ' shall also have the power to commit'; that is to say the rule gives two powers, power to attach.....
Judgment:

1. I have no doubt that in this case an appeal lay to the District Judge. The decision in Venkatasami v. Stridavamma I.L.R. (1886) M. 179 is an authority which is binding upon me. It was decided under the old Code in a case in which the Court below had refused to appoint a receiver under Section 503. Order 43 Rule 1(r) of the present Code provides that an appeal lies from orders ' under' Order 39 Rule 2 and if I follow the Full Bench case I must hold that an order refusing or declining to attach the property of a person who has disobeyed an injunction or to commit him to prison is an order 'under' that rule. I am bound to follow that case, and I must hold that an appeal lay.

2. Apart from that case, the language of Order 43 suggests the same conclusion. Some of the sub-rules provide for appeals from orders refusing to make the order Which is expressly provided for in the rules referred to in those sub-rules and such orders are described as made under the rules to which they refer though they are not expressly provided for in those rules. That suggests that an order rejecting an application under Order 39 rule (2) is an order made under that rule. This is confirmed by the Full Bench decision.

3. It was further suggested that in the particular case of Order 39 Rule 2 there should be no appeal against an order which amounts to an order of acquittal or contempt of Court ; that is based on this. An order of acquittal in a case of disobedience to an injunction is not against the interest of any party to the suit; if at all, it is only against the interest of the Court itself. Nobody is injured by it and nobody ought to have a right of appeal from it. That I think is not so. It is clear to me that in many cases disobedience to an injunction may result in an injury to one or other of the parties to the suit and Sub-rule 4 provides for compensation to be paid by the Court out of the proceeds of the sale of the attached property of the delinquent, a provision which to my mind makes it clear that the court did not intend that the matter should be considered as one in which the parties had no interest. I have no doubt that, as a matter of fact, it is very much to the interest of .the party who obtains the injunction to see that it is obeyed, and, if the Court refuses in its discretion to punish for disobedience, it is to the interest of the party to appeal and get punishment inflicted. There is therefore, nothing in this contention which would lead me to think that an appeal is not intended to be given.

4. Nor do I think there is any thing in Section 104(h) against the competency of the appeal. Section 104(h) provides in general terms that, when under the Code a sentence of imprisonment has been passed or a fine imposed, there shall be an appeal. It has nothing to do with cases in which a sentence is not passed, and does not suggest at any rate, to my mind that the rules should not provide for an appeal in such cases. I hold then that an appeal lay, and if the District Judge has rightly heard the appeal I cannot interfere on this petition presented under Section 115 and, for some reason or other which I do not understand, under Section 151 also. No argument has been addressed to me on Section 151, and I am certainly unable to see that the sending of the disobedient party in this case to prison for disobedience to the injunction is a matter requiring my interference under Section 115. Nothing has been shown to me to suggest that the order of the District Judge works injustice of any kind. But to enable me to interfere under Section 115 it is contended that the order is illegal because no attachment has been made of the property of the delinquent. That contention is based on the words ' and may also order such person to be detained ' in Order 39 Rule 2 Sub-rule 3; and it is contended that that means that in addition to the attachment the Court may order such person to be detained in the Civil prison and inasmuch as there is no attachment in this case, the order for detention is illegal and is an order which I must correct under Section 115. I have had some doubt but on the whole I think it is not so. Though the language of the present Code is changed the change has not, I think, effected a change of the law at any rate so as to make it first to order attachment before ordering commitment. The phrase ' may also commit' means, I think, ' shall also have the power to commit'; that is to say the rule gives two powers, power to attach and also power to commit. It does not expressly say that both may be exercised cumulatively and I need not decide whether that is the law or not. The rule does I think necessarily imply that the powers may be exercised alternatively and that was allowed by the old code.

5. That being my view of the case, there is nothing wrong in the order of the District Judge and I dismiss the petition with costs.


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