Knowledge of the lawyer of the party of the order of injunction simpliciter should not be imputed on the party who has allegedly failed to obey the order passed by the Court and that should not be sufficient to fasten him with the liability.

JUDGMENT :

S.C. Datta, J. - This matter has come before us upon a reference by S.C. Mohapatra, J. the point involved in this case is short and simple. The point that falls for determination is whether an order of temporary injunction passed in presence of the lawyer for the party is sufficient notice of injunction to the party itself. According to the learned Judge, Order 39, Rule 2-A, CPC is penal in nature and when drastic action under such provision is intended to be taken, notice to the lawyer by itself should not be sufficient for penalising the party violating the order of injunction. The learned Judge doubted the correctness of the decision reported in Arjun Jena and Another Vs. Brahmananda Pani and Others,

2. The facts lie in a short compass and may be summarised as follows:

The present Petitioner brought title Suit No. 39 of 1981 before the Addl. Subordinate Judge, Berhampur for partition of the disputed property claiming 1/7th share in it. The Defendants contested the suit raising various pleas. Eventually, the suit was decreed n preliminary form declaring Plaintiff's 1/7th share in the disputed property. Being dissatisfied with the judgment and decree of the trial Court, Defendant No. 1 has preferred the first appeal which has been registered as First Appeal No. 104 of 1989. The Petitioner was contesting the appeal. She apprehended alienation of the suit property during pendency of the appeal and as such filed a petition for temporary injunction restraining the Defendants from disposing of any part of the suit property. The opp. party in the present application who is the Appellant in the first appeal filed counter denying the allegations, However, on hearing learned Counsel for both sides, the following order was passed by this Court on 1.9.1992:

Heard counsel. Appellant is restrained from alienating any suit property without prior permission of this Court. The application is allowed.

3. The Petitioner alleges that the opp. party Appellant sold a plot under Khata No. 127, plot No. 3738/3887 of an area of Ac.0.027, i.e. item No,45 of 'A' schedule properties of the plaint to one Raju Raula and Rajkuamri Raula for a consideration of Rs. 17,840/- by registered sale deed dated 15.9.1992 when the order of temporary injunction was in force. The Petitioner alleges that the opp. party wilfully disobeyed the order of injunction passed by this Court and as such she prays for appropriate order for violation of the order of the Court by the opposite party.

4. The opposite party has filed a counter wherein she had denied violation of the order of the Court. She claims that she was unaware of the order of the Court dated 19.1992 till her counsel had informed her about the order of the Court on 18.9.1992. She stated that the sale deed was executed on 15.9.1992 before she had knowledge of the order of the Court dated Ist September, 1992.

5. This case came up for hearing before S.C. Mohapatra, J. on 30th August, 1993, In course of hearing the learned Judge doubted the correctness of the decision reported in Arjun Jena and Another Vs. Brahmananda Pani and Others. According to him, when action under Order 39, Rule 2-A, CPC was proposed to be taken, notice to the lawyer about the order of injunction by itself should not be sufficient for penalising the party violating the order of injunction. Since the correctness of the aforesaid decision has been doubted, a close scrutiny of the same is essential. On perusal of the decision, it appears that the Court observed that in order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde and knew that it was intended to be enforced and that is sufficient. It appears clear therefore that the knowledge of the order of the Court on the part of the party is essential before he can be punished for contempt of the order of the Court. The knowled