order passed by the learned Judge of the trial Court below Ex. 107 was without any notice to him and therefore it is bad in law. The said point was raised before the Appellate Court. The Appellate Judge replied that act of sale was only ministerial in nature and therefore, it was not necessary that notice should have been given to other party of such application. It is not possible for me to agree with the said view. Every order passed by the Court is judicial order. Further by the application Ex. 107, the Respondent is praying for certain order having penal or civil consequences for the petitioner. The Petitioner was having a right to show to the Court that he had obeyed the order or he had not committed any breach of the same. The Court has to decide whether breach continued or there was disobedience of the order or not, before passing the order of sale of attached property. It was absolutely necessary that show cause notice should have been given to the Petitioner and heard in the matter. Mr. Mandlik, who appears on behalf of the Respondent, contends that the petitioner is still continuing with the said breach. It is not possible to come to such a conclusion unless notice is given to the petitioner and he is heard in the matter. Order 39 Rule 3A (2) contemplates such a notice
1. The Respondent herein filed Regular Civil Suit No. 16 of 1985 for injunction against the petitioner. The Respondent prayed for permanent injunction restraining the Petitioner from disturbing his right of way and of his right to take water from the well. The Respondent also prayed for interim injunction by filing an
application. On the said application, ad-interim injunction was granted on 28-6-1985, which came to be confirmed on 10-10-1985. Petitioner filed Civil Misc. Appeal challenging the said order, which was also dismissed. The petitioner herein did not obey the order of injunction and therefore the Respondent filed an application under Order 39 Rule 2 of the Civil Procedure Code for attachment of the property of the Petitioner and also for sending him to Civil Prison. An order came to be passed below the said application Exh. 65 to the effect that the property of the petitioner be attached and he should be detained in the Civil Prison as per Order 39 Rule 2A(1) of the Civil Procedure Code.
2. The Respondent herein filed Exh. 107 on 17th October 1988 for sale of the attached property of the Petitioner. No notice thereof was given to the Petitioner and the learned Judge i.e. Civil Judge, Junior Division, Shri-wardhan ordered sale of attached property. Being aggrieved, the Petitioner herein filed Civil Misc. Appeal No. 90 of 1988 which came to be dismissed by the Additional District Judge, Raigad, by his order dated the 20th May, 1990. The said order has been challenged by the Petitioner in this Revision.
3. Mr. C. G. Gavnekar, learned Advocate appearing on behalf of the Petitioner contended that the order dated 28-10-1988 by trial Court was passed beyond the period of one year of the original order of attachment dated 20-5-1987 and in view of the Order 39 Rule 2A(2), it could not have been done by the learned Judge since the order of attachment continued only for a period of one year, and the Respondent ought to have taken steps within the said period, if there was any disobedience. It is not possible to agree with the said contention. In my view, it is other way round. If the attachment continues for one year and even thereafter if it is found that the party is disobeying or committing breach or continuing any breach of the order, then the attached property can be sold. The stage of sale can come only after on year of the order of attachment and if the disobedience continues. I therefore, reject the said contention.
4. The learned Advocate for the petitioner further argued that the order passed by the learned Judge of the trial Court below Ex. 107 was without any notice to him and therefore it is bad in law. The said point was raised before the Appellate Court. The Appellate Judge replied that act of sale was only ministerial in nature and therefore, it was not necessary that notice should have been given to other party of such application. It is not possible for me to agree with the said view. Every order passed by the Court is judicial order. Further by the application Ex. 107, the Respondent is praying for certain order having penal or civil consequences for the petitioner. The Petitioner was having a right to show to the Court that he had obeyed the order or he had not committed any breach of the same. The Court has to decide whether breach continued or there was disobedience of the order or not, before passing the order of sale of attached property. It was absolutely necessary that show cause notice should have been given to the Petitioner and heard in the matter. Mr. Mandlik, who appears on behalf of the Respondent, contends that the petitioner is still continuing with the said breach. It is not possible to come to such a conclusion unless notice is given to the petitioner and he is heard in the matter. Order 39 Rule 3A (2) contemplates such a notice.
5. In the result, I set aside the order passed by the Court below i.e. by the trial Court dated 28-10-1988 below Ex. 107, and by the Appellate Court dated 20-5-1990 in Civil Misc. Appeal No. 90 of 1988. I direct the Civil Judge, Junior Dn., Shrivardhan to issue a notice of the petitioner herein of application Ex. 107 and decide the said application afresh on merits after considering the reply, if any, filed by him and hearing the parties on or before 30th April, 1991.
6. Rule made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
7. Order accordingly.
Bombay High Court
Mahadeo Dhondu Budhe vs Sayyad Mahamud Sayyad Mohamad ... on 13 February, 1991
Equivalent citations: AIR 1992 Bom 51, 1991 (3) BomCR 508
Bench: P Patankar
ORDER1. The Respondent herein filed Regular Civil Suit No. 16 of 1985 for injunction against the petitioner. The Respondent prayed for permanent injunction restraining the Petitioner from disturbing his right of way and of his right to take water from the well. The Respondent also prayed for interim injunction by filing an
application. On the said application, ad-interim injunction was granted on 28-6-1985, which came to be confirmed on 10-10-1985. Petitioner filed Civil Misc. Appeal challenging the said order, which was also dismissed. The petitioner herein did not obey the order of injunction and therefore the Respondent filed an application under Order 39 Rule 2 of the Civil Procedure Code for attachment of the property of the Petitioner and also for sending him to Civil Prison. An order came to be passed below the said application Exh. 65 to the effect that the property of the petitioner be attached and he should be detained in the Civil Prison as per Order 39 Rule 2A(1) of the Civil Procedure Code.
2. The Respondent herein filed Exh. 107 on 17th October 1988 for sale of the attached property of the Petitioner. No notice thereof was given to the Petitioner and the learned Judge i.e. Civil Judge, Junior Division, Shri-wardhan ordered sale of attached property. Being aggrieved, the Petitioner herein filed Civil Misc. Appeal No. 90 of 1988 which came to be dismissed by the Additional District Judge, Raigad, by his order dated the 20th May, 1990. The said order has been challenged by the Petitioner in this Revision.
3. Mr. C. G. Gavnekar, learned Advocate appearing on behalf of the Petitioner contended that the order dated 28-10-1988 by trial Court was passed beyond the period of one year of the original order of attachment dated 20-5-1987 and in view of the Order 39 Rule 2A(2), it could not have been done by the learned Judge since the order of attachment continued only for a period of one year, and the Respondent ought to have taken steps within the said period, if there was any disobedience. It is not possible to agree with the said contention. In my view, it is other way round. If the attachment continues for one year and even thereafter if it is found that the party is disobeying or committing breach or continuing any breach of the order, then the attached property can be sold. The stage of sale can come only after on year of the order of attachment and if the disobedience continues. I therefore, reject the said contention.
4. The learned Advocate for the petitioner further argued that the order passed by the learned Judge of the trial Court below Ex. 107 was without any notice to him and therefore it is bad in law. The said point was raised before the Appellate Court. The Appellate Judge replied that act of sale was only ministerial in nature and therefore, it was not necessary that notice should have been given to other party of such application. It is not possible for me to agree with the said view. Every order passed by the Court is judicial order. Further by the application Ex. 107, the Respondent is praying for certain order having penal or civil consequences for the petitioner. The Petitioner was having a right to show to the Court that he had obeyed the order or he had not committed any breach of the same. The Court has to decide whether breach continued or there was disobedience of the order or not, before passing the order of sale of attached property. It was absolutely necessary that show cause notice should have been given to the Petitioner and heard in the matter. Mr. Mandlik, who appears on behalf of the Respondent, contends that the petitioner is still continuing with the said breach. It is not possible to come to such a conclusion unless notice is given to the petitioner and he is heard in the matter. Order 39 Rule 3A (2) contemplates such a notice.
5. In the result, I set aside the order passed by the Court below i.e. by the trial Court dated 28-10-1988 below Ex. 107, and by the Appellate Court dated 20-5-1990 in Civil Misc. Appeal No. 90 of 1988. I direct the Civil Judge, Junior Dn., Shrivardhan to issue a notice of the petitioner herein of application Ex. 107 and decide the said application afresh on merits after considering the reply, if any, filed by him and hearing the parties on or before 30th April, 1991.
6. Rule made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
7. Order accordingly.
No comments:
Post a Comment