Surendra Kumar vs Arun Kumar - 1991 Supreme(MP) 546

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : J.P. Mishra.
For the Respondent: Anil Mishra.

Headnote:Civil Procedure Code, 1908 – O. 39, R. 2 A – breach of injunction order – order should be in personal knowledge of person concerned – if he presents himself in Court the same should be explained to him – finding on these facts is necessary for passing order under this provision.
        Short Note
       1. In this appeal the order impugned is one passed under Rule 2A of Order 39 CPC. The order is passed by the appellate Court taking the view that ad interim injunction was granted against the defendant – respondent (herein appellant) and he had disobeyed the terms of that injunction order and executed sale deeds in violation of that order. Counsel have taken me through the impugned order and Shri Anil Mishra has done his best to support the order which I found prima facie lacking in jurisdiction.
       2. Shri Anil Mishra submitted that the Court below arrived rightly at the conclusion in para 6 that disobedience has been proved of the order dated 28.2.1987 and rightly therefore in terms of Rule 2A, Order 39 CPC the property of the instant appellant has been attached. He submitted that in the appeal on 2.7.1987 the defendant – respondent had entered appearance through his counsel and subsequent thereto the sale – deeds have been executed on 16.6.1988 and 20.6.1988. He has also submitted that the there is a finding recorded in para 3 that in the appeal order was passed restraining the defendant – respondent from executing the sale – deed.
       3. However, the moot question is whether the instant appellant, defendant – respondent in the Court below had personal knowledge of the terms of the order and of the particulars of restraint imposed upon him under that order. About that there is no finding as earlier alluded; on two props the order so set up and both are ephemeral. The jurisdictional requirement of the Court below is wanting in not recording the finding that the notice which was served on the appellant conveyed to him the order dated 28.2.1987 and not gave him knowledge about the restraint. There is also no record made in the impugned order that when personally the appellant (defendant – respondent in the Court below) had appeared with the counsel the order passed against him on 28.2.1987 had been read to him and explained to him.
       4. For the aforesaid few short reasons, the impugned order cannot be sustained and it is accordingly quashed.
       5. However, it shall be open to the Court below, if so advised, to pass a fresh order keeping in view the jurisdictional requirement aforesaid.