PETITIONER: SYED ABDUL RAZACK Vs. RESPONDENT: MATADIN AGARWAL DATE OF JUDGMENT28/03/1994 BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. BHARUCHA S.P. (J) CITATION: 1994 SCC (4) 673 ACT: HEADNOTE: JUDGMENT:
ORDER
1. Leave granted.
2. This appeal is directed against the order of a Division
Bench of the High Court of Andhra Pradesh passed in LPA No.
193 of 1993 upsetting the orders of a learned Single Judge,
passed in breach of injunction proceedings.
3. The appellant herein was injuncted by the court for
alienating certain properties. According to the appellant
before he was served with the injunction he had disposed of
those properties. The price fetched was Rs 75,000. The
breach of the injunction was reported to the High Court.
The
+ Arising out of SLP No. 17226 of 1993
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learned Single Judge took the view that the appellant had
evaded service of the injunction and had indulged in a hide
and seek game and, therefore, deserved to be dealt with
severely. The appellant was thus ordered to be detained in
civil prison for three months. The appellant then showed
cause to the learned Single Judge against the action
ordered. He pleaded that he was not aware of the issuance
of injunction and that the ‘refusal’ recorded by the postman
on the registered covered letter sent to him was wrong. The
learned Single Judge impressed by the version of the
appellant recalled the order of detention and ordered
instead attachment of the sum of Rs 75,000, the price which
the sold property had fetched, lying with the Vijaya Bank,
Secunderabad. Reflected inherently in the said order was
recall of the order of detention since the court effected
the said attachment and directed the release of the
appellant. This view of the learned Single Judge was upset
by the Division Bench of the High Court in Letters Patent
Appeal taking the view that it was not open to the learned
Single Judge under the guise of a review to modify the
sentence and order the appellant’s release by exonerating
him from his liability for flouting the injunction.
4. We do not agree with the reasoning of the Division
Bench of the High Court. Sub-rule (1) of Rule 2-A of Order
39 of Civil Procedure Code reads as follows :
“(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, of 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.”
5. The orders which the court could pass under the
aforequoted provision includes an order of recall since it
can suspend the detention of the defaulter and direct his
release. On what terms would the court take such a step
would depend on the facts and circumstances of each case.
Nonetheless it cannot ever be said that the court had no
power to pass related subsequent orders after ordering
detention in civil prison of a defaulter. Its subsequent
powers, which are part and parcel of the original powers,
cannot be termed as review powers as has been viewed by the
Division Bench of the High Court. The order of the learned
Single Judge thus squarely fell within sub-rule (1) of Rule
2-A of Order 39 of CPC; this being neither a case under the
Contempt of Courts Act, 1971 nor a criminal or quasi-
criminal action. This distinction needed to be kept in mind
when dealing with a matter under sub-rule (1) of Rule 2-A of
Order 39 of Civil Procedure Code.
6. We are, therefore, of the view that the Division Bench
was in error in upsetting the orders of the learned Single
Judge. Accordingly, we allow the appeal, set aside the
impugned order of the Division Bench of the High
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Court and restore that the learned Single Judge. There will
be no order as to costs.
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