Ex-parte order of injunction set aside.

1. Defendants 2 to 4 in O.S.No.1085 of 1992, on the file of Principal District Munsifs Court at Nagercoil, are the petitioners herein.

2. Respondent/plaintiff filed a suit as O.S.No.617 of 1991, on the file of the District Munsifs Court, Padmanabhapuram, for partition, which was transferred to Nagercoil and renumbered as O.S.No.1085 of 1992. Pending litigation, respondent herein filed I.A.No.1364 of 1991 and prayed for an interim injunction restraining the petitioners herein from demolishing an old building in the property which was, the subject matter of the suit, and also from proceeding with any construction. An interim injunction was granted on 21.8.1991 and the order was also confirmed on 4.9.1991, though ex parte.

3. Petitioners herein filed I. A.No.1712 of 1991 to set aside the ex parte order of injunction and the said petition was allowed by order dated 10.11.1993. The injunction application already filed by plaintiff was renumbered as I.A.No. 172 of 1993.

4. A preliminary decree was passed in the suit, and the matter is now pending in appeal. In the meanwhile, the plaintiff also filed an application to initiate contempt proceedings as well as an application under O.39, Rule 2-A, C.P.C. The trial court, after passing a preliminary decree, posted these applications for evidence. At that time, petitioners herein moved applications stating that no order could be passed on those interlocutory applications since the court has become functus officio and also for the reason that the order confirming the injunction was set aside by a subsequent order dated 10.11.1993. The contention was that there was no order to be implemented and, therefore, the proceedings cannot be continued. He wanted the matter to be heard and decided as a preliminary issue.

5. By the impugned order, the court below dismissed it, and the same is challenged in this revision.

6. At the time when the matter came for admission, since caveat had been filed and the respondent had entered appearance through court, the entire revision was heard on merits, for final disposal.

7. Learned counsel for petitioner submitted that under O.39, Rule 2-A, C.P.C, the interim order must be in force when the same is sought to be implemented and also when proceedings are initiated allegedly for violating that order. In this case, a decree has been passed and, therefore, everything merges in that decree. Again, it is submitted that the final order on the injunction application has been set aside, and the injunction petition is pending consideration. Therefore, the procedure adopted by the lower court in posting the LA. after passing the decree, is not without jurisdiction. Learned counsel for petitioner relied on the decision reported in Bachpal Singh v. Gurdarshan Singh, A.I.R. 1985 P. & H. 299 with particular reference to paragraph 4 and last portion of paragraph 5.

They read thus:

“Sub-rule (1) of Rule 2-A provides that in the case of disobedience of any injunction granted under Rule 1 or Rule 2 or breach of any of its terms on which the injunction was granted or order made, the court may order the property of the person guilty of such indiscipline or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release. Sub-rule (2) lays down that no attachment made under the said rule shall remain in force for more than one year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto. From the combined reading of the provisions of these two sub-rules, it appears that their purpose is the enforcement of the injunction and not the punishment for its disobedience. From the phraseology used in the said Rule, it is further evidence that detention in the