Executing Sale Deeds in violation of a court undertaking constitutes contempt of court, as the statements made by advocates are binding unless proven otherwise.

ORDER :

A.S. SUPEHIA, J.

1. The present application emanates from the order dated 07.04.2017 passed by this Court in Appeal from Order No.228 of 2016.

2. Learned advocate Mr.Kapadia appearing for the applicants at the outset, has submitted that despite the statement having been made on behalf of the respondent Nos.1 to 4 by learned advocate Mr.Utpal Panchal not to sell the property and not to create any right, title and interest on the property, two sale-deeds have been executed; (i) Sale Deed No.5061 dated 23.06.2020 for the first part of the property in favour of the respondent Nos.5 and 6 and (ii) Sale Deed No.5062 on the very same day for the second part of the property in favour of the respondent Nos.7 to 11.

3. Learned advocate Mr.Kapadia has further submitted that further fraud has been committed by the respondent Nos.1 to 4, while filing the affidavit dated 11.07.2021. It is submitted that, vital fact of executing another Sale Deed for the another half of the property has been suppressed by the respondent Nos.1 to 4. It is submitted that the Sale Deed is executed in contravention of the undertaking dated 07.04.2017 made before this Court and the appellants were not aware about the execution of the Sale Deeds as no entry was made in the Records of Rights and they came to know of the said fact only on 15.12.2022 i.e. on the day of cross-examination of the complainant - Vinodbhai Dinkarrai Desai and during his cross-examination, the defendant revealed that the Sale Deed is executed for remaining part of the suit property. Thus, it is submitted that the respondents have committed aggravated form of contempt and hence, they may be punished accordingly.

4. Opposing the aforesaid submissions advanced by learned advocate Mr.Kapadia, learned advocate Mr.Shah appearing for the respondents has submitted that the present contempt proceedings are not maintainable and the applicants have remedy under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC), as the order has been passed in the Appeal from Order before the High Court. Secondly, it is submitted that the respondent Nos.1 to 4 were not aware about the statement made by learned advocate Mr.Utpal Panchal, who was representing them and they had no occasion to meet the learned advocate and hence, they are not bound by the statement made by him on their behalf before this Court in the proceedings of Appeal from Order. It is submitted that the applicants herein have also not informed the trial Court about the aforesaid order for 2 years. It is further submitted that in the affidavits filed by the respondent Nos.1 to 4, they have categorically stated that since they were in dire need of money during the COVID-19 pandemic and due to bona fide mistake that there was no restraining order from this Court, have decided to sell the land to respondent Nos.5 and 6 and the Sale Deed was executed on 23.06.2020. It is submitted that there is no willful disobedience and not even least intention to commit breach of the order of this Court. He has also submitted that as per the contents of the affidavit, they may be pardoned and they will abide by any further direction that may be passed by this Court in the interest of justice.

5. Learned advocate Mr.Shah, while pointing out the directions issued in the order dated 07.04.2017 in Appeal from Order No.228 of 2016 has submitted that in fact, no directions are issued by the learned Single Judge restraining the present respondent Nos.1 to 4 in any manner and they are only confined to the proceedings of Special Civil Suit No.608 of 2011 and Special Civil Suit No.291 of 2012 and thus, it is urged that the contempt application may not be entertained.

6. While placing reliance on the affidavit filed by the respondent Nos.5 and 6, it is submitted by learned advocate Mr.Shah that the said respondents may be pardoned and sincere and unconditional apology may also be accepted as there is no willful disobedience. It is submitted that they have paid the St