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Prafulla Kumar Mohapatra Vs. Jaya Krushna Mohapatra and ors.

Prafulla Kumar Mohapatra vs Jaya Krushna Mohapatra and ors.

Disposition Appeal dismissed Court Orissa Decided Jan 04, 1994
~5 min read
https://sooperkanoon.com/case/526142

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Citation
Court
Orissa High Court
Judge
Decided On
Case Number
Misc. Appeal No. 170 of 1990
Subject
Civil
Disposition
Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue
Civil
Outcome / disposition
Appeal dismissed
Acts & sections
Code of Civil Procedure (CPC) , 1908 - Order 5, Rule 20 - Order 39, Rule 2A

Parties & Advocates

Appellant / Petitioner

Prafulla Kumar Mohapatra

Advocate S.P. Misra, ;D. Chatterjee, ;A.R. Dash and ;A.K. Misra, Advs.

Respondent

Jaya Krushna Mohapatra and ors.

Advocate P.K. Misra, N.C. Pati, S.K. Swain, B.K. Nayak, A.K. Nanda, B. Sahoo and A.K. Sahoo

Legal References

Acts
Code of Civil Procedure (CPC) , 1908 - Order 5, Rule 20 - Order 39, Rule 2A
Cases Referred
and Kumarber Sehoo v. State of Orissa
Reported In
AIR1994Ori173; 1994(I)OLR280

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2. the learned counsel for the plaintiff-appellant has urged that the approach of the learned subordinate judge is erroneous, as the effect of the evidence of an..........took place on 19-5-1988, an application for appropriate action against defendant no. 1 (respondent no. 1), the purchaser (respondent no.2) and her husband (respondent no.3) was filed. the learned subordinate judge held that respondent no. 1 had in fact violated the order of injunction, and directed attachment of his property valued at rs. 10,000/-. so far as other two opposite parties in the misc. case are concerned, it was held that there was no violation by them, as it has not been proved that they had knowledge about the order of injunction.2. the learned counsel for the plaintiff-appellant has urged that the approach of the learned subordinate judge is erroneous, as the effect of the evidence of an advocate who clearly stated about knowledge of respondents 2 and 3 has not been considered in its proper perspective, and similarly the effect of notice in the newspaper has not been considered. the learned counsel for the respondents 2 and 3 on the other hand submitted that the restraint was on sale and therefore, it cannot be said that there was any violation so far as respondents 2 and 3 are concerned. it is also submitted that they were not parties in the misc. case, where the impugned order was passed, and therefore, the proceeding was misconceived so far as they are concerned.3. i shall first deal with the submission whether a person who is not a party to the proceeding can also be proceeded against for his alleged act of violating the order of injunction. the word 'person' as appearing in sub-rule(1) of rule 2a of order 39 is wide enough to engulf a person, who is an agent, a servant and a workman. rule 2a wasintroduced by the amending act of 1976. it takes the place of sub-rules(3) and(4) of rule 2 of order39. the said sub-rules have been deleted from rule 2 by the said amending act. in addition to reproducing the provisions of sub-rules(3) and(4) of rule 2, the new rule 2a provides for the breach of an order of injunction passed under rule 1 of.....

Full Judgment

1. In a fight between son the appellant and father (respondent No. 1), the role of respondent Nos. 2 and 3 has been described to be that of abettors in the act of alleged violation of order of injunction passed by the learned Subordinate Judge, Bhubaneswar. The appellant as plaintiff has filed Original Suit No. 278 of 1987 before the learned Subordinate Judge praying for a decree of partition of the suit property, claiming one-third share in respect of the ground floor and full interest in respect of the first floor. Respondent No. 1 is defendant No. 1, and his wife is defendant No.

2. Plaintiff filed an application under Order 39, Rules 1 and 2, Code of Civil Procedure, 1908 (in short, 'CPC') seeking temporary injunction, wherein respondent No. 1 was impleadcd as the sole opposite party. The prayer in essence was to restrain the said opposite party, defendant No. 2 and agents from alienating the property in any manner till final disposal of the suit. By order dated 21-10-1987 an order of ad interim injunction was passed ex parte against defendant No. 1, defendant No. 2 and agents restraining them from alienating the suit property in any manner. Notwithstanding such order of injunction, the property was sold by registered sale deed dated 19-5-1988. It is the case of the plaintiff that since the defendantsavoided to take notice of the suit and the misc. case, notice was given in a newspaper giving details of the proceeding on 28-1-1988. Even after such publication, the defendant No. 1 did not appear either in the misc. case or in the suit. After the ad interim order of injunction was passed, a notice was given in the newspaper on 11-3-1988, for information of the general public and any intending purchaser of the suit schedule properties, to the effect that there was an order of injunction in respect of the said properties. Since the sale took place on 19-5-1988, an application for appropriate action against defendant No. 1 (respondent No. 1), the purchaser (respondent No.

2) and her husband (respondent No.

3) was filed. The learned Subordinate Judge held that respondent No. 1 had in fact violated the order of injunction, and directed attachment of his property valued at Rs. 10,000/-. So far as other two opposite parties in the misc. case are concerned, it was held that there was no violation by them, as it has not been proved that they had knowledge about the order of injunction.

2. The learned counsel for the plaintiff-appellant has urged that the approach of the learned Subordinate Judge is erroneous, as the effect of the evidence of an advocate who clearly stated about knowledge of respondents 2 and 3 has not been considered in its proper perspective, and similarly the effect of notice in the newspaper has not been considered. The learned counsel for the respondents 2 and 3 on the other hand submitted that the restraint was on sale and therefore, it cannot be said that there was any violation so far as respondents 2 and 3 are concerned. It is also submitted that they were not parties in the misc. case, where the impugned order was passed, and therefore, the proceeding was misconceived so far as they are concerned.

3. I shall first deal with the submission whether a person who is not a party to the proceeding can also be proceeded against for his alleged act of violating the order of injunction. The word 'person' as appearing in Sub-rule

(1) of Rule 2A of Order 39 is wide enough to engulf a person, who is an agent, a servant and a workman. Rule 2A wasintroduced by the Amending Act of 1976. It takes the place of Sub-rules

(3) and

(4) of Rule 2 of Order

39. The said sub-rules have been deleted from rule 2 by the said Amending Act. In addition to reproducing the provisions of Sub-rules

(3) and

(4) of Rule 2, the new Rule 2A provides for the breach of an order of injunction passed under Rule 1 of the said Order, and it also provides penalty for the breach or disobedience of an order of injunction made under Rule 1 or Rule

2. While considering a case under Sub-rules

(3) and

(4) of Rule 2, as it existed prior o the amendment, the apex Court in The State of Bihar v. Sonabati Kumari, AIR 1961 SC 221, held that the expression 'person' appearing in Order 39, Rule 2(3) has been employed merely compendiously to designate every one in the group defendant, his agents, servants and workmen and not for excluding any defendant against whom the order of injunction has primarily been passed. In Kamini Debt (and after her) Nanda Kishore Dash v. Puma Chandra Nath, (1987) 63 Cut LT 326, and Kumarber Sehoo v. State of Orissa, (1990) 69 Cut LT 726, a similar view was expressed by this Court. If such were not the law, orders of injunction would be rendered nugatory by their being contravened by the agents and servants of the parties, and it could be conveniently defied by setting up a third party. This legal position is brought out by the terms of an injunction order set out in Form 8 of Appendix F to the CPC. Whether a person not impleaded in the suit and not named in the injuction order can be proceeded against under Order 39, Rule 2A for violation of the order depends on the facts and circumstances of the case. An injunction is an equitable relief and it is trite law that equity acts in personam. Therefore, an injunction is a personal matter.

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