JUDGMENT
Navaniti Pd. Singh, J.
Page 1755
1. Heard.
2. In a partition suit at the stage of final decree preparation there was apparently some compromise. Defendant Nos. 1 and 2, while the final decree preparation was going on by registered sale deeds, dated 10.1.1989, 9.3.1989 and 12.3.1989 sold part of the property under partition to defendant who is the petitioner before this Court. In this view of the matter this defendant along with other vendees were made defendant Nos. 4 to 8 and an application for injunction praying for injuncting defendant Nos. 1 and 2 from alienating the property was filed by the plaintiff-opposite party. By order dated 11.4.1989 the trial court passed an order of injunction. Subsequently, on 7.1.2005 an application purporting to be one under Order XXXIX, Rule 2A Sub-rule 2 of the Code of Civil Procedure read with Section 151 CPC was filed by the plaintiff alleging that defendant Nos. 4 to 8 including the petitioner before this Court had violated the injunction order dated 11.4.1989 and as such, were liable to be punished. Defendant-petitioner appeared and filed an application questioning the maintainability of the said application and Page 1756 prayed that the said question be decided as a preliminary issue. By the impugned order dated 12.9.2005 passed in the said miscellaneous case the learned Sub Judge II, Jhanjharpur has rejected the application of the defendant-petitioner holding that the question whether the proceedings were maintainable or not are mixed question of fact and law. The same would require detailed evidence and, as such, could not be decided as a preliminary issue. For the purposes of passing the liability of disobedience of injunction order on defendant Nos. 4 to 8 the court has placed strong reliance on the judgment of this Court in the case of Ram Prasad Singh v. Subodh Prasad Singh and Ors. sine .
3. I have heard Mr. Mahesh Narain Parbat, learned Counsel in support of this application and Mr. Kameshwar Prasad Gupta, who appears for the plaintiff and undertakes to file a vakalatnama. He on behalf of plaintiff-opposite party has also filed a purported counter affidavit which is kept on record. The question to be determined is what is the nature of the injunction order dated 11.4.1989 and whether defendant Nos. 4 to 6 can be said to be violated the same by purchasing the property from defendant Nos. 1 and 2 on the dates as mentioned aforesaid, which dates undisputedly are much prior to the injunction order. In view of this simple and undisputed fact what emerged is that an injunction application was filed for restraining defendant Nos. 1 and 2 from alienating the property. They alienated property by three sale deeds to defendant Nos. 4 to 8 but they were subsequently, consequent to the sale as aforesaid, added as a party. Even though this fact was in the knowledge of the plaintiff, no effort was made to get an order of injunction against them. The injunction as granted is in para 18 of the order of dated 11.4.1989 and is put herein under after:
In the result, this injunction matter is disposed of with a direction that the original parties to the suit i.e. plaintiff-defendant Nos. 1 and 2 will not interfere the schedule of each other allotted in the compromise preliminary decree and they will not alienate the lands of other schedule which stands not allotted to one share. As regards the schedule 4 of the compromise petition, the heirs of the defendant No. 3 (deceased) will be at liberty to make transfer of the lands with the leave of the court if necessity for the same arises. Thus, the injunction matter is accordingly disposed of put up on 20.4.89 for further orders.
4. The English is simple. The order is unambiguous. It clearly restricts defendants 1 and 2 from alienating the property. The order operates in future. It is prospective in nature. No sane- minded person can dispute this. If this is taken into consideration it would be seen that the sale deeds had already been executed in the previous month. Alienation has already been made. The vendees were added as a party and were before the court but no injunction was issued as against them in any manner. The injunction was limited to defendants 1 and 2. On the face of it, it is absurd to even suggest that defendants 4 to 8 were bound by any injunction, much less by the order dated 11.4.1989. This is sufficient to quash and set aside the impugned order and hold that the application filed under Order XXXIX, Rule 2A Sub-rule 2 CPC is not maintainable and ought to have been rejected summarily.
5. As the trial court has gone to some length in dealing with the judgment of this Court. In the case of Ram Prasad Singh (supra), I would like to clear a legal misconception which the trial court has carried. The said case is on the basis that an injunction was passed against the agent of defendant. Here in the present case the injunction was against defendant Nos. 1 and 2 and most curiously defendant Nos. 1 and 2 are not Page 1757 proceeded against. Persons proceeded against are defendant Nos. 4 to 8, who had purchased the property prior to injunction. Even if it be assumed that they are successor in interest which is not the case, as they are transferee of interest, they cannot be treated as an agent. Suffice is to give an illustration in this regard. If there be an injunction against A injuncting him from changing the feature of land but not restraining him to alienate the land, the purchaser would be bound by the injunction as he is a transferee of interest and the interest was clouded with the injunction. Here, in the case before us the transferee purchased the land prior to injunction to the knowledge of the plaintiff they were added as a party but no injunction or any restrain order was passed against them.
6. In that view of the matter the judgment as referred has absolutely no application.
7. In the result, the impugned order dated 12.9.2005 passed by Sub Judge II, Jhanjharpur in Misc. Case No. 12 of 1996 (Tr. No. 22 of 2004) is set aside and it is held that the application filed by the plaintiff under Order XXXIX, Rule 2A Sub-rule 2 CPC is not maintainable and the trial court is directed to dismiss the same.