Vishwas Vitthalrao Sawkar vs Vinayak Narayan Birari
2021 Latest Caselaw 1441 Bom

                                                                 23 cpst612-21.odt


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
Trusha T.
Mohite                           CONTEMPT PETITION (ST.) NO.612 OF 2021
Digitally signed by
Trusha T. Mohite
Date: 2021.01.25
11:41:55 +0530
                      Dr.Vishwas Vitthalrao Sawkar & Ors.             .. Petitioners

                      vs.
                      Vinayak Narayan Birari & Ors.                   .. Respondents

                                                     .....

                      Mr.Ashok B. Tajane for the Petitioners

                                                     .....

                                               CORAM: K.K.TATED &
                                                       R.I.CHAGLA, JJ.

DATED : JANUARY 21, 2021 P.C.

. Heard.

2. By this Contempt, Petition Petitioners are seeking relief to take action against the Respondents under the Contempt of Court Act for violating the order dated 29.01.2013 passed by Division Bench of this Court in Civil Application No.193 of 2013 in First Appeal No.52 of 2013 and order dated 21.11.2014 by which earlier order was confirmed. Order dated 29.01.2013 reads thus:

"1. Rule, returnable on 25th March, 2013. The learned counsel appearing for the Applicants submits that the Applicants are in possession of the suit property.

2. There will be ad-interim stay of the

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execution and operation of clauses 2, 4, 5 and 6 of the operative part of the impugned judgment and decree, subject to the condition that the Applicants shall not create any third party interests in respect of the suit property."

3. The learned counsel for the Petitioners submits that inspite of injunction order passed by this Court on 29.01.2013 Respondent original defendant no.2 executed sale deed dated 19.10.2020 Exhibit Q page 135 in respect of the suit land i.e Gut No.98 Area OH 62.50R, Gut No.98 OH 40R in favour of Prakash Pandurang Shendge, Deepak Prakash Londhe, Samadhan Khandu Aher, Sagar Ashok Paithane and also executed another sale deed dated 23.10.2020 in respect of OH 22.50 R lands from suit property i.e. Gut No.98 in favour of Deepak Prakash Londhe, Yogesh Eknath Shiral, Bharat Eknath Shiral, Maruti Anna Pawar, Bhagwat Trimbak Gangurde, Satish Subash Kadam, Aruna Satish Kadam, Vaishali Sanjay Harale and Karan Sanjay Harale.

4. In the present proceeding, Petitioner original plaintiff filed Special Civil Suit No.290 of 2006 before the 4th Joint Civil Judge, Senior Division, Nashik for specific performance of contract in respect of the land admeasuring 3H 12 R from Gut No.98 and alternatively amount of Rs.71,05,800/-. Trial Court by its judgment and decree dated 27.09.2012 partly decreed the suit. Operative part reads thus:

"ORDER

1) The suit is hereby decreed with costs.

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                                              23 cpst612-21.odt



           2)     The defendants are hereby directed to

carry out measurement of the suit property within two months from the date of this order and accordingly inform the exact measurement in view of measurement report to the plaintiffs.

3) The plaintiffs have paid Rs.19,11,000/- and accordingly they are hereby directed to deposit the remaining balance consideration amount in the Court, at present by considering the area of the suit property, as mentioned in the suit plaint ie. 3H 12R, within two months from the date of decree. Failure to which the suit of the plaintiffs shall stand dismissed.

4) After measurement, if there occurred any difference in the area than in view of agreed rate of sale consideration of the suit property vide visar pavati Exh.28, the amount of consideration is to be adjusted by the plaintiffs and defendants interse.

5) The defendants are hereby directed to execute the sale deed in favour of the plaintiffs of the suit property admeasuring 3H 12R or of an area of the suit property after its measurement, after two months of the decree i.e. from 27/11/2012 and execute it on or before 27/12/2012.

6) Failure to compliance as per the decree on the part of defendants, the plaintiffs are entitled to get it completed by adopting due process of law.

7) Decree be drawn up accordingly."

5. Being aggrieved by the said Judgment and Decree, Respondents original appellants preferred First Appeal

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No.52 of 2013 and also Civil Application No.193 of 2013 for stay. Civil Application was allowed by this Court and also restrained Respondents original appellants in First Appeal No.52 of 2013 from creating any third party right title and interest in respect of the suit property. Inspite of the said order, Respondent original defendant no.2 created third party right. Hence, the Petitioner preferred the present Contempt Petition.

6. During the course of argument, the learned counsel for the Petitioner submits that action be taken against the Respondents for violating the order passed by this Court on 29.01.2013 and 21.11.2014 in Civil Application No.193 of 2013. He further submits that because of change in jurisdiction, First Appeal was transferred to District Court and same is registered as Civil Appeal No.612 of 2016 before the District Court, Nashik. He submits that same is pending for hearing and final disposal on its own merits.

7. When this Court declined to entertain the present Contempt Petition on the ground that remedy is available to the Petitioner under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, the learned counsel for the Petitioner submits that he requires some time to take instruction. Order 39 Rule 2A of Code of Civil Procedure, 1908 reads thus:

"Rule 2A Order XXXIX of Code of Civil Procedure

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"Consequence of disobedience or breach of injunction"

(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, 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."

9. As the learned counsel for the Petitioner requires some time to take instruction, Registry is directed to place the matter on board on 27.01.2021.

(R.I.CHAGLA, J.)                         (K.K.TATED, J.)




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