Kishan vs Pooransingh
2021 Latest Caselaw 8933 MP

             THE HIGH COURT OF MADHYA PRADESH
                            M.C.C. No.1334/2020
     Kishan S/o Bhagwandas Agrawal Vs. Pooransingh S/o Narayansingh Patel
                                       -: 1 :-

HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
Division Bench: Hon'ble Shri Sujoy Paul and Hon'ble Shri
                     Pranay Verma

                            M.C.C. No.1334/2020
Applicant        :     Kishan S/o Bhagwandas Agrawal
Respondent        :    Pooransingh S/o Narayansingh Patel
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        Shri Akshat Pahadia, learned counsel for the applicant.
        Shri Kuldeep Pathak, learned counsel for the respondent.
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                                    O R D E R

(Passed on 17.12.2021) Per : Pranay Verma,J.

1. By this application under Order XXXIX Rule 2-A of the Code of

Civil Procedure read with Section 12 of the Contempt of Courts Act,

1971, the applicant/respondent No.1/plaintiff has prayed for punishing

the non-applicant/applicant/appellant No.1 for non-compliance of order

dated 16.09.2010 passed in First Appeal No. 97/2010.

2. The facts of the case reveal that the applicant had filed a suit before

the Court below for specific performance of contract against the non-

applicant in respect of survey No.23, area 1.948 hectares, Patwari Halka

No.15 (New No.31), Gram Landipura, Tehsil- Kasrawas, District-

Khargone. By judgment and decree dated 09.04.2009, the suit was

decreed by the trial Court being aggrieved by which the non-applicant

preferred First Appeal No.97/2010 before this Court. In the appeal an THE HIGH COURT OF MADHYA PRADESH M.C.C. No.1334/2020 Kishan S/o Bhagwandas Agrawal Vs. Pooransingh S/o Narayansingh Patel

application under order XXXIX Rule 1 & 2 of the CPC was filed by the

applicant registered as I.A. No.5375/2010 for issuance of temporary

injunction restraining the non-applicant from alienating the suit property

and from creating any third party interest with respect thereto.

3. By order dated 16.09.2010, the I.A. was disposed of in the

following terms:

"Shri A.S. Garg, learned Senior Counsel with Shri Rakesh Yadav, learned counsel for the appellant."

Shri Akshat Pahadia, learned counsel for the respondent.

Heard on I.A. No.5375/2010, which is an application under Order XXXIX Rules 1 & 2 of the CPC, filed by the respondent No.1.

Having heard learned counsel for the parties on the said application, it is directed that in case, the appellant intends to sale/alienate the suit property, the same shall not be done unless permitted by this Court.

4. The contention of learned counsel for the applicant is that despite

the aforesaid order, the non-applicant has executed registered sale deed

dated 19.10.2020 with respect to the suit property without obtaining leave

of this Court. The said act of the non-applicant is in clear willful

disobedience of the order of this Court for which the non-applicant is

liable to be punished.

5. Reply has been filed by the non-applicant submitting that he had

no knowledge about the order dated 16.09.2010 passed in First Appeal

No.97/2010 and came to know of the same only when notice of present

application was received by him and when he enquired about the contents THE HIGH COURT OF MADHYA PRADESH M.C.C. No.1334/2020 Kishan S/o Bhagwandas Agrawal Vs. Pooransingh S/o Narayansingh Patel

of notice from his local counsel. The non-applicant is an illiterate person

and when contents of order dated 16.09.2010 were explained by his local

counsel in Hindi, he became aware of it. It has further been submitted

that the non-applicant knows only his local counsel and had no

knowledge about the fact of appeal having been preferred before this

Court on his behalf and of the interim order passed therein. The appeal

was preferred before this Court without his knowledge and he never had

any contact with the counsel representing him in the appeal. It is also

submitted that order dated 16.09.2010 was never in his knowledge and

was never communicated to him as a result of which, the suit property

has been alienated by him bona fide. Lastly, it has been submitted that it

has never been his intention to disrespect or to disobey any order of this

Court. Unconditional and unqualified apology has also been submitted on

behalf of non-applicant and prayer has been made for accepting the same.

6. From the record, it appears that upon passing of judgment and

decree by the trial Court application under Order 44 Rule 1 of the CPC

was filed by the non-applicant before this Court for grant of permission

to him to sue as an indigent person. The same was personally present by

him. His affidavit and Vakalatnama in support of the application and the

proposed appeal were also filed. On allowing of application for

permission to sue as an indigent person, First Appeal was registered. As

the application/appeal had been preferred by the non-applicant himself THE HIGH COURT OF MADHYA PRADESH M.C.C. No.1334/2020 Kishan S/o Bhagwandas Agrawal Vs. Pooransingh S/o Narayansingh Patel

his contention that the same was done by his local counsel without his

knowledge cannot be accepted. The non-applicant was represented by his

duly engaged counsel in the appeal who had also appeared at the time of

passing of order dated 16.09.2010 hence, it cannot be said that non-

applicant was not aware of the order. Knowledge of counsel would

always be deemed to be knowledge of the party whom he represents.

There is no requirement of any proof to be furnished as regards

communication of the order by the counsel to his client. The contention

of the non-applicant that the order was not communicated to him hence

also cannot be accepted.

7. Since the non-applicant was represented by a counsel at the time of

passing of order dated 16.09.2010, there was no necessity for the

applicant to have communicated the order to him. Thus we hold that the

sale deed dated 19.10.2020 has been executed by the non-applicant in

violation and in breach of order dated 16.09.2010 passed in First Appeal

No.97/2010.

8. Now coming to the question of punishment which deserves to be

awarded to the non-applicant it is to be seen that the purpose of

proceedings under Order 39 Rule 2(a) of the CPC is primarily for

remedying the wrong and attempting to put the parties to the position as

they were prior to flouting of the order of which disobedience has been

committed. In the present case the apology tendered by the non-applicant THE HIGH COURT OF MADHYA PRADESH M.C.C. No.1334/2020 Kishan S/o Bhagwandas Agrawal Vs. Pooransingh S/o Narayansingh Patel

appears to be a mere after thought and we have no hesitation in rejecting

the same out-rightly. The sale deed has already been executed by the

non-applicant in favour of third person which shall certainly be covered

by the principles of lis pendence as contemplated under Section 52 of the

Transfer of Property Act. Attaching the property of the non-applicant or

sending him to civil prison would not serve any purpose as none of these

punishment would be of any solace to the applicant.

9. In the available facts and circumstances of the case, we direct that

the sale price received by the non-applicant under the sale deed dated

19.10.2020 executed by him in favour of a third person namely Sanjay

Jaiswal deserves to be attached which attachment shall remain during the

pendency of First Appeal No.97/2010. We order accordingly. The

applicant shall be at liberty to move appropriate application before the

Trial Court for compliance of the present order. In case such an

application is filed by him the Trial Court shall take necessary steps for

attachment of the sale price received by the non-applicant under the sale

deed dated 19.10.2020 and shall ensure that such attachment continues

during pendency of First Appeal No.97/2010.

10. With the aforesaid, instant application stands allowed and

disposed off.

   (SUJOY PAUL)                                         (PRANAY VERMA)
      JUDGE                                                  JUDGE
   jyoti/ns
Digitally signed by JYOTI
CHOURASIA
Date: 2021.12.20 12:54:59
+05'30'