Ramdas Govindrao Jironkar vs Rajesh Balaji Choudhary
2016 Latest Caselaw 7190 Bom

                                                                                  913_WP156606.odt


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                            BENCH AT AURANGABAD

                             WRIT PETITION NO. 1566 OF 2006




                                                                 
    Ramdas Govindrao Jironkar
    Age: 50 years, Occ. Business,
    R/o Viveknagar, Nanded,




                                                                
    Tq. & Dist. Nanded.                                                  ..PETITIONER

                   VERSUS




                                                    
    Rajesh Balaji Choudhary
    Age: 30 years, Occu.: Business, 
    R/o Gokulnagar, Nanded,
    Tq. & Dist. Nanded.                                                  ..RESPONDENT
                                   
                                        ....
    Mr. V.D. Salunke, Advocate for petitioner.
    Mr. R.B. Choudhary, Advocate for respondent.
                                        ....
           


                                             CORAM :  T.V. NALAWADE, J.

DATED : 14th DECEMBER, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard both sides by

consent for final disposal.

2. The petition is filed to challenge the order made by the Ad-hoc

Additional District Judge, Nanded in Miscellaneous Civil Appeal No. 85 of

2005. It appears that present respondent had filed suit for relief of

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specific performance of contract of sale of immovable property. The suit

came to be dismissed and appeal against the said decision is pending in

the District Court. It appears that the Appellate Court had granted

temporary injunction in Appeal to prevent the defendant from alienating

the suit property. It is contended that in breach of that order, the

property came to be sold by present petitioner and when appeal was

pending. Submission is made that the purchaser is also made party

respondent in the appeal.

3. The application was moved before first Trial Court and then

Miscellaneous Civil Appeal No. 85 of 2005 was filed by the original

plaintiff. In that appeal, order is made to set aside the sale deed executed

by the petitioner in favour of third party as according to the District

Court, sale deed was executed in breach of the order made by the Court.

4. If there was initial order of injunction, that was under Order

39 of the Code of Civil Procedure and if there is breach of such order,

provision of Order 39 Rule 2A can be used for taking action. Order 39

Rule 2-A is as under:-

"O.39, R.2-A - Consequence of disobedience or breach of injunction.

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(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach

of any of the terms on which the injunction was granted or

the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of

such disobedience or breach to be attached, the property of the person guilty of such disobedience 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. (2) No attachment made under this 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."

5. The provision shows that the order which can be made under

this Order is attachment of the property and if disobedience continues,

further orders can be made under 2A(2) of the same Rule. In the present

matter, it is immovable property and at the most it can be said that

provision of Section 52 of the Civil Procedure Code also can be used. In

that case also it is settled law that transaction itself cannot be treated as

void though it will be subject to the decision of the suit. In view of this

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circumstance, this Court holds that the District Court has committed grave

error in setting aside the sale deed executed by the petitioner. The effect

on the sale deed can be considered of the aforesaid circumstances only

when plaintiff succeeds in the suit filed for relief of specific performance

of contract. As the appeal is pending, this Court holds that order made by

the District Court cannot sustain in law.

6. In the result, petition is allowed. Decision given by the District

Court is set aside. Rule made absolute in those terms. These observations

are for present purpose only.

( T.V. NALAWADE, J. )

SSD

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