IMPORTANT POINT
Contempt of Court must be proved by adducing facts committal of breach.

Abhay M. Naik, J.—This is a contempt petition under Sections 10, 12 and 16 of the Contempt of Courts Act, 1971 for taking action under the provisions of the said Act against respondents/contemnors No.1-Yamuna Devi, 2-Ram Manohar, 3 Shri R.P. Thakur (Presiding Judge, Court of Civil Judge Class I, Mungaoli, District Ashok Nagar), and 4-Shri Salim Khan (Naib Nazir) for their alleged act of having deliberately and intentionally flouted the order of this Court dated 21.10.2009 passed in S.A. No.544/2009.

2. Facts in short relevant for this petition are that respondents No.1 & 2 instituted Civil Suit No.24A/2006 for eviction from the suit shop and recovery of arrears of rent, which was decreed in their favour against the applicant by the Court of Civil judge, Class I, Mungaoli, District Guna vide judgment and decree dated 21.4.2008. Civil Appeal No.16A/2008 preferred against it was dismissed by the learned lower Appellate Judge on 29.9.2009. 30th Sept. 2009 was public holiday being Sunday, therefore the application for certified copy of the judgment and decree of the lower appellate Court was submitted on 1.10.2009, which was delivered on 7.10.2009. Applicant on receipt of certified copy of the judgment and decree dated 29.9.2009, collected the requisite papers of his case from his local counsel and contacted the lawyer at Gwalior for preparation and filing of Second Appeal before this Court. Second appeal alongwith stay application was got prepared by the applicant’s counsel on 14.10.2009. On account of Deepawali Holidays from 15.10.2009 to 19.10.2009, the appeal could not be submitted before this Court within the said period. In the meantime, on application of respondents No.1 & 2/decree-holders, warrant of possession and warrant of attachment were ordered to be issued by the Executing Court on 8.10.2009 (Civil Judge, Class-I, Mungaoli), which was presided over by respondent No.3. Pursuant to this, warrant of possession was dispatched on 13.10.2009 vide dispatch No.286 from the Executing Court, directing thereby Naib Nazir Mungaoli to submit report on or before 23.10.2009. Copy of warrant of possession is on record as Annexure-B.

3. Applicant, on coming to know of the aforesaid, submitted an application under Order XXI, Rule 26 & Section 151 CPC before the Executing Court on 20.10.2009 stating thereby that Second Appeal was already prepared but the same could not be filed on account of Deepawali holidays. A prayer was made to grant few days for submitting second appeal and seeking stay order. It was prayed that till then proceedings with regard to delivery of possession of the suit shop may kindly be stayed. It was also contended by the applicant that he was ready and willing to comply with the conditions which may be imposed by the Executing Court. This application was duly supported by an affidavit. Copy of the application and affidavit are on record as Annexures C & D respectively.

4. Learned Executing Judge i.e. (respondent No.3) considered the application contained in Annexure-C and dismissed it on the same day holding thereby that the application was submitted on the basis of probabilities. Accordingly, case was ordered to be fixed on 23.10.2009 for the report with regard to execution of warrant of possession.

5. After rejection of application contained in Annexure-C, respondents No. l & 2/decree-holders submitted an application on the same day under Section151 CPC before the Executing Court that the applicant has put a lock on the suit shop in order to create obstruction in the execution. Therefore, the warrant of possession could not be executed. Decree-holders prayed that concerned officer may kindly be directed to deliver the possession of the suit shop after breaking open the lock. Copy of the application was supplied to the applicant’s counsel at about 4.45 p.m. on 20.10.2009, which is on record as Annexure-E.

6. Respondent No.3/Presiding Judge of the Executing Court again took up the matter for hearing on the same day