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S. Adaikkala thevan and anr. Vs. the Imperial Bank, Madura Branch, Through Its Agent Mr. E.B. Shawe and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1926Mad574; 95Ind.Cas.196; (1926)50MLJ401
AppellantS. Adaikkala thevan and anr.
RespondentThe Imperial Bank, Madura Branch, Through Its Agent Mr. E.B. Shawe and ors.
Cases ReferredRamprasad Singh v. The Benares Bank
Excerpt:
- - 2. abdul wahab sahib, an agent of the 2nd plaintiff, in an affidavit, dated the 9th of march, 1925, has set out very clearly soms of the acts of disobedience. 4. we arc satisfied that the version of the plaintiffs is substantially correct. it now transpires that in spite of this adjournment not even an attempt was made to give security and it is even more significant that the respondents have failed to appear before us and their learned vakil has reported that he has no instructions. we do not at present feel called on to deal with the respondents for their failure to comply with our order to appear in court. they again obtained an adjournment agreeing to give security and they failed to do so and not only did they fail to do so but they also wilfully kept away from court with the..........march to this court to punish the respondents for disobedience to the order and in support of the application various affidavits have been filed.2. abdul wahab sahib, an agent of the 2nd plaintiff, in an affidavit, dated the 9th of march, 1925, has set out very clearly soms of the acts of disobedience. we may mention that our order was made after notice to the respondents and in the presence of their learned vakil mr. t. m. krishnaswami aiyar. although the order was made on the 26th, the respondents continued to cut, harvest and remove the crops on and from the 27th of february. without giving security they collected a large number of men and in spite of protests carried off the crops. the receiver who had been appointed, reported to the sub-court on the 27th of february, the 1st of.....
Judgment:
ORDER

1. This is an application to punish the respondents for disobedience of an injunction granted by this Court. How serious and deliberate has been the disobedience, will appear from the facts which we shall briefly state. The 1st plaintiff in O.S. No. 3 of 1925 on the file of the Subordinate Judge's Court of Dindigul is the Imperial Bank of India and the 2nd plaintiff obtained a lease of the suit lands from the 1st plaintiff on the 30th of June, 1924, to take effect from the 16th of July, 1924. There was a prior lease in favour of the 1st defendant which expired on the 15th of July, 1924, and the 2nd plaintiff was obstructed in the act of taking possession by the defendants some of whom alleged that the Imperial Bank had agreed to execute in their favour a fresh lease. The plaintiffs thereupon filed the suit asking for possession and mesne profits. There were crops on the land valued at Rs. 6,000 odd and on the plaintiffs' application the Subordinate Judge appointed on the 10th of February, 1925, a Receiver with power to take possession of and harvest the standing crops. There was an appeal to this Court and an order was made by Mr. Justice Wallace on the 20th February, 1925. On the ground that that order was ambiguous the plaintiff filed a Letters Patent Appeal. On the 20th of February, 1925, we made an order restraining the defendants from entering upon the land and harvesting the crops until they furnished security for Rs. 6,000 and if the security was not furnished the Receiver would continue to be in possession. The plaintiffs made an application on the 10th March to this Court to punish the respondents for disobedience to the order and in support of the application various affidavits have been filed.

2. Abdul Wahab Sahib, an agent of the 2nd plaintiff, in an affidavit, dated the 9th of March, 1925, has set out very clearly soms of the acts of disobedience. We may mention that our order was made after notice to the respondents and in the presence of their learned vakil Mr. T. M. Krishnaswami Aiyar. Although the order was made on the 26th, the respondents continued to cut, harvest and remove the crops on and from the 27th of February. Without giving security they collected a large number of men and in spite of protests carried off the crops. The Receiver who had been appointed, reported to the Sub-Court on the 27th of February, the 1st of March, and again on the 4th of March. On the 2nd of March, the respondents removed about 7 cart-loads of paddy and on the 3rd of March 10 cart-loads. Between the 3rd and the 10th, they further harvested the crops on aboat 30 to 40 acres and removed a large quantity of paddy. The men were armed with sticks and rifles and behaved in a highhanded manner. The respondents made a show of complying with the order to furnish security but it was not eventually furnished.

3. We adjourned the application from the 10th to the 16th to enable their vakil to communicate with the respondents. Advantage was taken of this adjournment and between the nth and the 14th they continued to harvest the crops. These facts are spoken to by the 2nd plaintiff and his watchmen Vellayamba and Nachimuthu who have filed affidavits. On the 27th of March the 2nd respondent filed a counter-affidavit stating that the harvesting and the removing of the crops had to a large extent been completed before the order was made and making a definite allegation that there still remained about 70 kulis or about 45 acres to be harvested. The i.s(: respondent swore to an affidavit on the 6th of April containing similar but less definite allegations. The plaintiffs' agent in his reply affidavit, dated the 12th of April, swore that since filing their affidavits the respondents rapidly proceeded with the harvesting of the crops on the remaining 40 acres.

4. We arc satisfied that the version of the plaintiffs is substantially correct. The facts we have set forth show that the respondents have deliberately defied the order and even after their conduct was brought to our notice they did several acts in utter disregard of the authority of the Court.

5. There is another aspect of the case to which we must draw attention. On the 12th of August, in view of the fact that if the allegations against the respondents were true, they would be guilty of a gross contempt, we directed them to be present in Court when we heard the motion. They accordingly appeared and the application was partially heard on the 5th of October. On that day, as it was represented to us that if further time was granted the respondents would give security and that the proceedings against them might be then dropped, we complied with their request and adjourned the application directing them to be present in Court on the adjourned date should it become necessary to further hear the application. It now transpires that in spite of this adjournment not even an attempt was made to give security and it is even more significant that the respondents have failed to appear before us and their learned vakil has reported that he has no instructions.

6. The respondents have been guilty of a serious contempt in tailing to appear before us. Their conduct throughout has been 'fraudulent and they have deliberately defied the injunction issued by this Court. We do not at present feel called on to deal with the respondents for their failure to comply with our order to appear in Court. Nor do we propose in regard to their disobedience of the injunction, to commit them in the exercise of our inherent and extensive jurisdiction in respect of contempt. We think that it is unnecessary to use the very large powers that the High Court possesses, as in our opinion the respondents can be adequately punished under the provisions of the Code.

7. Under Section 94, Civil Procedure Code, the Court is empowered to commit a person guilty of disobedience of an injunction to the civil prison and to direct that his property shall be attached and sold. Order 39, Rule 2(3) prescribes the punishment and under it, the person in default may be detained in the civil prison for a term not exceeding six months and his property may be attached. The drafting of this rule, as has been pointed out in Ramprasad Singh v. The Benares Bank, Lld.(1916) 42 All 98 is somewhat inartistic, but there is no doubt that it applies to disobedience generally of an injunction granted by the Court. Order 39, Rule 2(3) applies not only to disobedience of an order issued under Clauses (1) and (2) of that rule but has a more genera application, it applies alike to disobedience of all injunctions issued under Section 94. See also Vidyapurna ThirthaS'ivami v. The Vicar of Suratkal Church (1917) 7 LW 328

8. We think that the respondents are deserving of no consideration and we order that they be detained in a civil jail for a period or six months and that their property be attached.

9. Then remains a matter of some importance to be considered. How is our order to be executed? Section 136 of the Code prescribes the procedure to be followed where any person is to be arrested or any property is to be attached under a provision not relating to the execution of decrees and such person resides or such property is situate outside the jurisdiction of the local limits of the Court. In this case the arrest and attachment are under the provisions of the Code not relating to the execution of decrees. So far the section applies. But there is some difficulty in regard to the other portion of the section which says that the person shall reside or the property shall be situate outside the local limits of the jurisdiction of the Court. In the present case our order is one made in the exercise of our appellate jurisdiction and the High Court has jurisdiction on its appellate side over the whole of the Presidency. The respondents are outside the limits of the City and it may be said that though they are outside the limits of the ordinary Civil jurisdiction of the High Court they are certainly within the limits of its appellate jurisdiction. We do not think thai: it is necessary to decide this point. Whether section 136 strictly applies to the case or not, there is nothing to prevent us from adopting the procedure laid down in that section and sending to the appropriate District Court the warrant of arrest and the order of attachment for necessary action being taken. The District Courts, their officers and staff are undoubtedly subject to the jurisdiction of and are under the supervision of the High Court and we see no difficulty in directing this mode of execution. The District Court on receipt of the warrant and order will adopt the procedure prescribed by Section 136.

10. It is suggested to us that we might send a special bailiff from this Court. This is more cumbrous and expensive than the procedure which we have resolved to adopt.

11. The respondents besides disobeying the order of injunction have behaved very dishonestly and fraudulently. Having first obtained an adjournment they utilised the interval to commit further acts of depredation. They again obtained an adjournment agreeing to give security and they failed to do so and not only did they fail to do so but they also wilfully kept away from Court with the deliberate object of evading its process. The 1st respondent, we understand, is the principal offender and he will therefore pay the costs of the application which we fix at Rs. 200 (two hundred). ?

12. Since delivering the above judgment it has been brought to our notice that the 2nd respondent did not file in Court the counter-affidavit dated 27th March to which we have referred. The case was argued on the footing that that affidavit was in Court, and we had before us only a copy of it. It would seem that Mr. T.M. Krishnaswami Aiyar, the learned vakil for the 2nd respondent, furnished a copy to Mr. Sitarama Rao, but omitted to file the original affidavit in Court So far as our judgment is concerned, this makes very little difference, for, without that affidavit the case of the respondents is distinctly worse.

13. The order of attachment and the warrant shall be transmitted to the District Court of Madura. The properties to be attached shall be specified in the order to be transmitted by this Court. Mr. Sitarama Rao undertakes to give a list of the properties in two weeks from this day.

14. A.A.O. No. 59 of 1925 is dismissed with costs.,

15. No order is necessary on any other application.


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