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Sheobrich Singh vs Basgit Singh And Ors. on 28 June, 1956

Patna High Court
Sheobrich Singh vs Basgit Singh And Ors. on 28 June, 1956
Equivalent citations: AIR 1957 Pat 73
Author: Misra
Bench: Sinha, Misra


JUDGMENT

Misra, J.

1. This civil revision application arises out of an order passed by the learned second Additional Munsif of Arrah, on the 8th of January, 1953, in Miscellaneous Case No. 7 of 1952, in the following circumstances. The petitioner was the plaintiff in a suit for declaration of title and recovery of possession over an area of one katha comprised in plot Nos. 2448 and 2452 of village Kurmuri in the district of Shahabad. The allegation of the plaintiff was that these two plots of land belonged to him. ‘

The defendants, however, who are opposite party in the present application, encroached upon the disputed portion by demolishing the boundary ridge between these two plots and plot No. 2451 belonging to the defendants. The suit was pending in the Court of the leaned Munsif, First Court, Arrah, and an injunction was issued by that Court at the instance of the petitioner on the 25th of March 1952 restraining the defendants from going on with their construction by way of digging foundation and raising walls etc.over the encroached portion.

The petitioner applied subsequently under Order 39, Rule 2, Sub-rule (3) of the Code of Civil Procedure for action against the defendants-opposite party on the allegation that they had committed breach of the order of injunction, and as such they were liable to be punished under the aforesaid provision of the Code of Civil Procedure. This gave rise to Miscellaneous Case No. 14 of 1952, which was started on the 23rd of April, 1952.

It appears, however, that on the 28th of April, 1952, the suit was transferred under the orders of the District Judge of Shahabad to the file of the second Additional Munsif, Arrah, for disposal. The allegation of the plaintiff in his petition was that the defendants had constructed nad charan and also put a sehan in the disputed land.

The learned Additional Munsif, however, by order dated the 10th June, 1952, dismissed the miscellaneous case holding that the plaintiff had failed to prove his allegation that the, construction complained of had been put up after the date of the order of issue of injunction. The learned Munsif passed the order after holding regular enquiry and recording evidence led by the parties.

2. The plaintiff applied, however, again under the same provision of law, namely, Order 39, Rule 2(3) of the Code of Civil Procedure for fresh action against the opposite party on the allegation that they had put up nad charan and sehan and also constructed a roof over the verandah as also a staircase. This application was made on the 24th of November, 1952, and gave rise to Miscellaneous Case No. 7 of 1952. The opposite party filed a rejoinder denying the allegations.

3. The opposite party, however, had preferred an appeal against the order of injunction and the learned Additional Subordinate Judge, Fifth Court, Arrah, allowed the appeal. The case was remanded to the court of the learned Munsif with a clear direction that if the disputed construction was found to lie in plot Nos. 2448 and 2452, the order of injunction was to continue as before and in case it was found to lie in plot No. 2451, which was claimed by the defendants, the order of injunction was to be vacated.

On remand, the learned Munsif issued a fresh commission in accordance with the direction of the appellate Court to the same pleader commissioner Mr. Amir Chand Lal to ascertain the position in the light of the observation made by the appellate Court. Subsequently, the defendants also filed a petition praying that fixed points for the measurement of the plots with reference to the survey map should be reliable points and made certain suggestions as to the fixed points to be accepted by the learned pleader commissioner. The Court accepted the prayer and issued direction to that effect to the learned pleader commissioner.

The learned pleader commissioner submitted a report in the light of this direction (exhibit A) on the 22nd August, 1952, together with a map attached to the report. According to this report, none of the alleged constructions fell within plot Nos. 2448 and 2452 but that they were situate in plot No. 2451 belonging to the defendants-opposite party.

The learned Munsif, Mr. G. Prasad. however, rejected the report of the commissioner and affirm-ed the order of injunction. The defendants went up in appeal against the order of the learned Additional Munsif and the learned Additional Subordinate Judge, Arrah, by his judgment and order dated the 13th March, 1953, vacated the order of injunction accepting the report of the learned pleader commissioner for the purposes of the injunction matter.

4. The prayer of the petitioner, however, for further action under Order 39, Rule 2(3) of the Code of Civil procedure was, in the meantime, taken up by the learned Additional Munsif to whose Court the case transferred, as I have mentioned above, from the Court of the permanent Munsif, Arrah, who had issued the order of injunction. He held an enquiry again and recorded some evidence.

In the course of the orders passed by him, he relied on the evidence of the pleader commissioner Mr. Amir Chand Lal recorded in the injunction matter on the 13th of September, 1952, in which he had referred to his previous report dated the 23rd January, 1952, and that the verandah and nad charan would partly fall in plot Nos. 2452 and 2448 and the rest in plot No. 2451. But he stated clearly that
“the case map (exhibit A) is more in keeping with the locality than the other maps prepared and filed by me. According ‘to this map the verandah and nad charan prepared by the defendants will fall in plot No. 2451.”

The learned Munsif, however, acting upon his statement in regard to the map dated the 23rd January, 1952, held that even according to Mr. Amir Chand Lal, who was a witness for the defendants, it was clear Chat the impugned constructions stood in plot Nos. 2452 and 2448, which amounted to a clear violation of the order of injunction as the constructions were made between the 13th of July, 1952, and the 18th of July, 1952, as alleged by the plaintiff.

In that view of the matter, the learned Munsif passed an order on the 21st September, 1952, whereas Mr. K. S. Pandey, the 5th Additional Subordinate Judge nad allowed the appeal of the defendants with the direction mentioned above on the 12th June, 1952. The learned Munsif came to the conclusion thus that the defendants having violated the order of Injunction by putting up the roof over, the verandah and constructing a staircase, were liable under the provisions of Order 39. Rule 2 (3) of the Code of Civil Procedure. Accordingly, he ordered the opposite party Basgit Singh, one of the defendants, to be detained in civil prison for a period of one month.

5. The defendants preferred an appeal against
this order which was also disposed of by Mr.
D. P. Sinha, the same Additional Subordinate
Judge, who allowed the defendants’ appeal against
the order of injunction. The learned Additional Sub
ordinate Judge affirmed the order of the learned
Addl. Munsif to the effect that the construction was
made during the pendency of the order of injunction and before it was vacated on appeal on the
13th March, 1953, and as such the defendants came
within the scope of Order 39, Rule 2(3) of the Code of
Civil Procedure; but he set aside the order of
the learned Additional Munsif on the ground that
the order of injunction was passed by the permanent Munsif, First Court, whereas the power under
Order 39, Rule 2(3), Code of Civil Procedure, was exercised by another Court, namely, the Additional
Munsif, so that on the authority of the case of
Jaharuddin v. Hari Charan, AIR 1914 Cal 815 (A) the order of the learned Munsif was illegal and
beyond jurisdiction and could not be upheld.. Accordingly, he allowed the appeal and set aside the
order of imprisonment passed by the learned
Munsif. The plaintiff has preferred the present
application in revision challenging the correctness
of the order of the learned Additional Subordinate
Judge.

6. Learned counsel for the petitioner urged that the decision in the above case of AIR 1914 Cal 815 (A) was erroneous and should not be follow-

ed by this Court. A learned single Judge of this Court referred the case for decision to the Division Bench. The facts of the above Calcutta case are more or less similar to the facts of the present case.

In that case also the order for the temporary injunction was passed by the Munsif of Dacca and thereafter the suit was transferred to the file of the District Judge. The disobedience alleged in that case was also admittedly made after the transfer. Their Lordships disposed of the contention with regard” to the lack of jurisdiction on the part of the learned District Judge as follows :

“Rule 2, Sub-rule (1), gives a Court power to issue a temporary injunction at any time after the commencement of a suit, and Sub-rule (3) then enacts that in case of disobedience or breach, the Court granting an injunction may punish the contempt. These words which are much more explicit than those used in para 3 of the corresponding Section 493 of the Code of 1882, seem to me to be perfectly clear and unequivocal, arid I can find nothing either in Section 24 of the present Code, which provides for the transfer or withdrawal of cases by a District Judge, or in Ch. 4, Bengal, Agra and Assam Civil Courts Act, 1887, which contains some further, provisions on the same subject, to authorise expressly of by necessary implication, the District Judge, who had not granted this injunction; to exercise the special jurisdiction conferred on the Court that granted it, merely because the suit in which it had been granted, had been trans-ferred to his file”.

Accordingly, their Lordships allowed the appeal and set aside the order of the learned District Judge. If the above decision is held to lay down the law correctly, it is clear that the present ap-plication by the plaintiff must fail as the learned Additional Subordinate Judge in the present case set aside the order of the learned Munsif on the authority of the above Calcutta decision.

Mr. Kailash Roy, for the petitioner, however, contended that their Lordships of the Calcutta High Court did not correctly decide the case of Jaharuddin (A), and invited us to take a different view of the matter. Section 493 of the Code of Civil Procedure, 1882 (Act XIV of 1882), in so far as it is relevant, ran thus: —

“In case of disobedience an injunction granted under this section or Section 492 may be enforced by the imprisonment of the defendant for a term hot exceeding six months, or the attachment of his property, or both”.

The reasoning of the Calcutta Bench in interpreting the words of Order 39, Rule 2(3) was based on the language of Section 493 of Act XIV of 1882, inasmuch as the words of Section 493 quoted above were suffi-ciently wide to authorise any proper Court to enforce an injunction in the event of disobedience by the imprisonment of the defendant or attachment of his property, or both.

Unlike that section, the changed words of Order 39, Rule 2(3) conferred the power to punish disobedience or breach of any terms of the Injunction upon the Court granting an injunction, so that giving the words of this rule their plain meaning, the exercise of this power must be limited to the Court granting the injunction and could not be exercised by any other Court which might be in seisin of the suit in which the injunction was granted. A transferee Court, therefore, would not be competent to punish for disobedience of an injunction granted by the transferor Court.

I find myself, however, unable to agree with the reasoning in the above Calcutta case and, in my opinion, no particular significance is to be attached to the insertion of the words “the court
granting an injunction occurring in Sub-rule (3) of Rule 2 of Order 39. In my opinion, the expression “the Court granting an injunction” had to be brought in on account of the recasting of Section 493 and putting it in active voice.

The language of Section 493, as it stood in the Code of 1882, was not clear enough as to the object of the punishment, and it was not indicated to What Court the application was to be made when an injunction was issued and breach of the terms there-of by a party bound by the injunction occurred. It was with a view to remove this vagueness or ambiguity that the legislature thought it fit to introduce the words “the Court granting an injunction”, because, in normal course, it must be that the Court granting the injunction would be really the proper Court to punish any disobedience of the order passed by it.

In my opinion, therefore, the expression “the Court granting an injunction” did not introduce any alteration in the provisions of Section 493 of the Code of 1882 but merely clarified the position which was vague and ambiguous before. The learned Judges of the Calcutta High Court were agreed that, if Section 493 of the 1882 Act had to be Interpreted, there was nothing illegal in the transferee Court punishing disobedience of injunction in the same manner as the transferor Court.

It was due only to insertion of the expression “the Court granting an injunction” that they felt difficulty and concluded that a substantial change was effected by the legislature by bringing in these words which were absent from the corresponding provisions of Section 493 of the Code of 1882. To me it seems, however, that the words were inserted not to introduce any real change but to clarify the position.

In the case of Mouna Guruswami Naicker v. Sheik Mohammadhu Rowther, ILR 46 Mad 83 : (AIR 1923 Mad 92) (B), the Division Bench of the Madras High Court had occasion to consider the effect of the insertion of the words “the Court which granted the injunction”. Their Lordships observed as follows :–

‘As was pointed out by Srinivasa Ayyanagar, J., in Suppi v. Kunhi Koya, ILR 39 Mad 907 : (AlR 1917 Mad 448) (C) the words the Court which granted the injunction’ were introduced into the new Code not with any object of changing the law which existed before, taut because the wording of the corresponding section in the old Code was not very happy as it implied that the injunction was to be enforced by imprisonment of the party whereas the imprisonment was really a punish. ment for disobedience.

These words ‘may be enforced’ as pointed out by the learned Judge had to be changed in the corresponding new rule and it resulted in redrafting of that rale itself. Naturally when the active form of expression was used by the legislature it was necessary to describe the court which was to be given power to punish for disobedience, and of course that was primarily the Court granting the injunction; but it is clear to our minds that this does not prevent the Court to which the business of that Court was transferred from exercising the power under Section 150.

Rule 2(3) does not say that it is only the Court granting the injunction that should make the order under it, so. that there is nothing in that rule which excludes the application of Section 150 by bringing it within the words ‘save as otherwise provided for’.

If the suggestion that is made by the learned Vakil for the respondent is taken, the result will be that in case the Court which passed the injunction was abolished altogether for some rea-

son, there will be no Court to punish for disobedience of the injunction even if the whole business of the abolished Court had been transferred to some other Court and was carried on by that other Court.

We are not prepared to adopt such a construction as this, unless the language is perfectly clear in favour of it. Here so far as we can see there is nothing in Order 39, Rule 2(3) and in Section 150 to pre-vent the Court to which the business of the first Court is transferred from exercising its powers under Rule 2(3)”.

I have quoted this part in extenso because I am In entire agreement with the reasoning of their Lordships of the Madras High Court and it effec-fively meets the position which formed the basis of the decision of Jaharuddin’s case (A).

The language of Section 150 of the Code of Civil Procedure is so clear that it must be read to control the provisions of Order 39, Rule 2(3) where as pointed out by the Madras High Court, the expression is not ‘only the Court granting the injunction can punish’ but the court granting te injunction’ so that where there is a transfer of business it does come under Section 150; and if a suit with an order of injunction passed therein is transferred from one Court to another, there is no reason why the transferee Court will not have powers co-extensive with the powers of the transferor.

In my opinion, in case of transfer of business, the transferee Court must be deemed to be the Court passing the order of injunction as it is substituted in its place for all purposes and not only, for the trial of the suit. Section 150 of the Code of Civil Procedure runs thus :

“Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall per-form the same duties as those respectively con-ferred and imposed by or und_er this code upon the Court from which the business was so transferred”.

It seems to me anomalous that the legislature intended that although the suit may be transferred from Court A to Court B with an order of injunction passed by Court A, and although the order of injunction will be enforced by Court B on receipt of the file of the case, still, if there is disobedience of that injunction, application must be made to Court A.

It will amount to this that, in an extreme case, if a suit is transferred, say, within the State of Bihar itself from the Court of the Munsif at Purulia to the Court of the Munsif at Motihari, for reasons of convenience of the parties or otherwise, the order of injunction passed by the Purulia Court. If disobeyed during the pendency of the suit at Motihari. must again be taken up before the Purulia Court.

It would defeat the entire object of the order of transfer, apart from the inconvenience caused to the parties, by way of the transfer of the file back to the Purulia Court, and its being sent back again to the Court at Motihari. The contention urged on behalf of the opposite party that the language of Order 39 Rule 2(3) being unambiguous, such a priori considerations cannot be introduced does not appeal to me to have any substance whatsoever. I agree with the reasoning of the Division Bench of the Madras High Court that the expression is not ‘only the Court granting the injunction” but ‘the Court granting the injunction’ which is significant. If the present transfer of the case Were to be taken as governed by Section 150 of the Code of Civil Procedure, I would have no hesitation in holding that the decision of the Calcutta High Court went too far and was not sound.

7. Learned Counsel lor the opposite party, however, urged that even assuming that where there is transfer of business as contemplated under Section 150 of the Code of Civil Procedure, it may well be held that Order 39, Rule 2(3) would be read with Section 150, and the Court to which the business of the. first Court is transferred would be Competent to punish for disobedience of the order of injunction in term of Order 39, Rule 2(3); but the present case, however, was not one of that class.

It was a case of assignment of business by the Dist. Judge under Section 13(2) of the Bengal, Agra and Assam Civil Courts Act, 1887, and as such there being no clear provision like Section 150 in regard to such, an assignment of business, the considerations which would arise in the case of transfer of business’ under Section 150 would not govern the assignment of business under this provision of the Act. In my opinion, there is no f9rce in this argument either.

In the first place, the literal construction sought to be put upon Order 39, Rule 2(3) is evidently not warranted in view of Section 150 and their Lord-ships of the Madras High Court in the above case while considering the provision of tile Madras Civil Courts Act, which corresponds to Act XII of 1887. held that Section 150 of the Code of Civil Procedure would apply in that case as well because the words ‘transfer of business’ occurring in Section 150 were sufficiently wide to cover a case where the District Judge fixed the jurisdiction of the Court under the Civil Courts Act and transferred the whole of the business within the area to it.

The distinction sought to be drawn between assignment of business’ and ‘transfer of business’ was not held to be correct. Learned Counsel for The opposite party, however, drew our attention to the case of Ramier v. Muthukrishna Ayyar, ILR 55 Mad 801 : (AIR 1932 Mad 418) (FB) (D) where the distinction between ‘assignment of business’ and ‘transfer of business’ was held to be one of substance and it was held that to that extent it overruled the view of the Division Bench in ILR 46 Mad 83 : (AIR 1923 Mad 92) (B).

It may be stated that the decision in Ramier’s case (D) aforesaid is a Pull Bench decision by the Madras High Court. That, however, was a case where the matter for consideration before their Lordships was not one under Order 39 Rule 2(3) which was specifically considered in ILR 46 Mad 83 : (AIR 1923 Mad 92) (B), but it was a case of entertaining an application for execution by a Court to which the business of another Court was assigned in pursuance of a notification, so that after the date of the notification the Court which passed the decree ceased to have territorial jurisdiction.

What happened in that case was that the decree holders obtained a final mortgage decree in the District Munsif’s Court, Melur, in respect of properties part of which were situated within the jurisdiction of the District Munsif’s Court, Melur, and part within the jurisdiction of the District Munsif’s Court of Madura Town.

Subsequent to the passing of the decree, there was a notification by the Madras High Court rearranging the jurisdiction of the Munsif’s Courts in the district so that the suit properties came within the jurisdiction of the Court of the District Munsif of Madura Taluk. The decree holders applied for execution in the Court of the District Munsif of Madura Taluk without applying for the transfer of the decree in the Melur Court.

The Full Bench in the above circumstances held that the District Munsif of Melur still continued to exercise jurisdiction, in respect of the decree passed by him and as such the application for
execution of the decree could not be entertained by the District Munsif of Madura Taluk, and it was not proper presentation for execution. The ratio of that case, however, was based upon the wording of the notification and Ramesam, J,, who delivered the judgment of the Court, expressed himself on the point as follows :–

“I think it necessary to set forth the notifi- cation clearly because, in my opinion, much of the conflicts of opinion and such decisions as, in my opinion, are erroneous are due to the non-reference to the actual wording of the notification.

I observe that in none of the former decisions is the notification actually set forth or its language specifically referred to….” Now looking at the language of this notification, in the first place I observe that it talks of the future; it does not apply to the past; it gives guidance to the people as to what they shall do in future; it tells them what Court, has jurisdiction over certain regions. Following this information, suitors who have got to file suits relating to properties have got to file their suits in the Court which has jurisdiction over those properties after the notification. But all this has nothing to do with the past. The notification does not in terms transfer any business pending or. closed from one Court to a new Court”.

It is obvious, therefore, that that decision was based upon the terms of that notification. Their Lordships, however, held that where there was transfer of a case under Section 24 of the Code of Civil , Procedure the transferee Court would have all the powers of tile transferor Court. It would be the transfer of specific business. The crux, therefore, of the question is where in’ fact a case has been transferred from one Court to another, there, even according to the decision of the Full Bench, the transferee Court would have all the powers of Tlie transferor Court.

I may state here that, apart from this modification in the general proposition laid down in ILR 46 Mad 83 : (AIR 1923 Mad 92) (B), there is no clear reference to that case which was not overruled, obviously because ILB 46 Mad 83 : (AIR 1923 Mad 92) (B) was dealing with a different set of facts altogether.

There are decisions of this Court as well, such as the case of Jagannath Prasad Singh v. Sheo-nandan Sahay, .6 Pat LJ 304 : (AIR 1921 Pat 152) (E), where also the effect of an order under Section 13 (2) of the Bengal, Agra and Assam Civil Courts Act was considered and it was held that where a mortgage decree was passed by the first Subordinate Judge and subsequently the work of the area in which the property, which was the subject matter of the suit in which the decree was passed, was allotted to the third subordinate Judge toy an order under Section 13(2), the first Subordinate Judge was not thereby deprived of his jurisdiction to execute the decree.

Section 150 of the Code of Civil Procedure was also considered and it was held that it was an enabling section by virtue of which the decree holder might apply for execution to the Court which would ultimately execute the decree, instead of applying in the first instance to the Court which. passed the decree and then obtained a transfer to the Court which would execute it.

But the basis of the decision was that by virtue of a mere assignment of business under Section 13(2), the original Court did not cease to have jurisdiction, so that it could not be held that where there was any transfer of business, the Court which pa’ssed the decree must still be held to have jurisdiction to execute it. The Court passing the decree, therefore, was the proper Court where the
application for execution of the decree must be filed.

This case is on all fours with ILR 55 Mad 801 : (AIR 1932 Mad 418) (FB) (D) and the principle laid down in both the decisions is that before Section 150, with the incidents of transfer, is applied it must be shown that there is in fact a transfer of the particular case

It is obvious that the question of transfer may arise in three contexts, one, under Section 150 when one Court ceases to have territorial jurisdiction giving the section a narrow interpretation; another under Section 24 of the Code of Civil Procedure when a particular case is transferred from the file of one Court to another and, third, when there is assignment or distribution of business by the District Judge or for that matter by the High Court.

It is clear that when there is transfer of business on account of the cessation of territorial jurisdiction even on a narrow view of Section 150, it must be held that Order 39, Rule 2(3) would be read along with Section 150 on the well-settled canon of construction that the various provisions of the statute must be read together to reconcile any possible conflict in meaning and scope.

If there is transfer of a case from one Court fo another under Section 24 of the Code of Civil Procedure, it appears to me obvious, as was considered by their Lordships of the Madras High Court in the above Full Bench decision, that this also would be transfer of business in the true sense and as such Section 150 would govern such a case as well. The difficulty arises only in the ease of assignment of business under Section 13(2) of Act XII of 1837, in which , event the position remains doubtful as to whether the arrangement or assignment is to operate for the future or it relates to the pending cases as well.

Ramesam, J. accordingly proceeded to construe the meaning of tra’nsfer of business in terms of Section 150 of the Code of Civil. Procedure with re-‘ference to the nature and purport of the notifica-tion making the. assignment of business. With the exception, however, of the above Calcutta case of Jaharuddin (A) which was followed by a single Judge .of the Calcutta High Court, McNair, J., in the case of Dagu Natfi Saha Roy v. Biswambhar Sana Boy, 163 Ind Cas 622 (Cal) (F), there is no other case to show that Order 39, Rule 2(3) of the Code of Civil Procedure stands by itself and is not gov-erned by any other provision of the Code. In my opinion, where there is transfer of a case, it-self, there can be no ambiguity that particular business of the Court is transferred from one Court to another. Where there is such a transfer of business Section 150 would apply.

If, therefore, there is transfer under Section 24 of the Code of Civil Procedure and the District Judge transfers a particular case from the file of one Court to another, the transferee Court will be held to have the same powers as the Court from which the case has been transferred. Looking to the order sheet of this case, I find nothing mentioned as to the circumstances in which the trans- fer was made by the learned District Judge but all Chat occurs in the order sheet under Order No. 51 dated the 28th April, 1952, is “Under D.J.’s order let the case be transferred to the file of 2nd Addi. Munsif for disposal”.

In Order No. 52 dated the 29th April, 1952, it is recorded “Received by transfer, Register and put up on the date fixed.” It is difficult to say exactly how the transfer was ordered but, presumably, it was under Section 24 of the Code of Civil Procedure which in terms empowers the District Judge to transfer any suit, appeal or proceeding pending in any Court subordinate to him to any
other Court subordinate to him and competent to try and dispose of the same.

In any view of the matter, it is a case of specific transfer of a case and to that extent, therefore, there is certainly transfer of business of one Court to another as contemplated under Section 150 of the Code. There is nothing in Section 24 of the Code to the contrary. Learned’ counsel for the petitioner also referred to the case of Janak Nandini Kun-wari v. Kedar Narain, AIR 1941 All 140 (G) where, although the facts were somewhat different and decision on one point at least is not consonant with the decision of this Court, namely, with regard to the applicability of Order 39, Rule 2(3) to an injunction under Order 39, Rule 1, but the general observation is pertinent:–

“The question then arises whether the proceedings arising out of a suit are transferred when the suit is transferred. In my judgment, the transfer of a suit implies the transfer of all proceedings which arise out of the suit. Under tne’ provisions of Section 37, the execution of a decree where the Court which passed the decree has ceased to have jurisdiction is vested in the Court which would have power to entertain the suit at the time when the application for the execution of the decree is presented.

On the analogy of this rule it seems to me that a Court which has passed an interim order which requires execution ceases to have Jurisdiction in the matter of enforcing the order when it ceases to have jurisdiction to deal with the suit and consequently that the power of enforcing the order lies in the Court which would deal with the interim proceeding if it began at that time. I hold therefore that the proper Court to enforce the execution of the interim injunction with which we are concerned is the Court in which the suit is now pending and I would therefore dismiss this application in -revision with costs.”

In my opinion, the proposition of law referred to above; relied upon by the learned counsel for the petitioner, lends support to the conclusion at which I have arrived and I am inclined to the view that once a suit with an order of injunction passed therein is transferred to another Court, it implies the authority in the transferee Court to exercise power under Order 39, Rule 2(3) of the Code of Civil Procedure and the decision of the Calcutta High Court to the contrary is not sound.

8. Some argument was made before us in regard to the expression ‘the Court which passed the decree’ and the powers Of the transferee Court in the matter of substitution in the event of the death of a judgment-debtor under Section 50 of the Code. Section 50(1) reads:–

“Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased”.

A number of decisions were cited at the bar to show that the expression ‘the Court which passed the decree’ has been construed as. meaning that even where there is an order of transfer of a decree for excutipn to another Court from the Court which passed the decree, an application for bring. ing on record the legal representative of the judgment-debtor must be made to the Court which passed it.

Mr. Kailash Roy, for the petitioner, however, has endeavoured to distinguish these cases on the ground that (as was held by the Full Bench of this Court in the case of Radheshyam v. Devendra, AIR 1952 Pat 213 (H)) in the case of transfer of decree for execution the Court that passed the decree always retains jurisdiction over the case.

The analogy, therefore, of transfer of ft decree for execution will not apply to the transfer of a suit which implies a transfer of everything ind-dental to the suit, namely, an order for injunction or the appointment of a receiver or attachment before judgment and such allied orders. It seems that Order IX, Rule 13 of the Code of Civil Procedure has been considered in the same sense. There also the expression is
“In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside;”

It has been held that the words ‘the Court by which the decree was passed’ should be given a liberal interpretation and would include any Court which, by reason of territorial readjustment, comes to be seized of the matter. If this were the only point involved in the case, I would have allowed the application, set aside the order of the learned Additional Subordinate Judge and restored that of the learned Munsif.

9. There is, however, another aspect of the matter in determining the merits of the present application. I have already shown that the learn-ed Munsif has held the opposite party liable mainly on the testimony of the pleader commissioner, Mr. Amir chand Lal, who was a witness for the defendants in the injunction matter, taken on the 13th September, 1952. The learned Munsif has said: —

“The pleader commissioner Sri Amirchand Lal deposed at page 5 of his deposition that the defendants had made new constructions in the disputed land only 1 or 2 weeks before when he visited the locality on 21-7-1952.

This pleader was a witness for the defendants themselves Hence I do not find any reason to disbelieve him.”

The argument of the learned pleader for the defendants-opposite party was that it was not shown that the disputed land was in possession of the plaintiff and as such the defendants were at (liberty to make constructions in their own land. This was negatived on the ground that if this argu-ment were accepted, the result would be that the whole suit would have to be decided in the injunction matter itself. The other result of the contention, according to the learned Munsif, would be that no injunction order could be validly passed by any Court in a dispute of the present nature without first adjudicating that the disputed portion lay in the plot of the plaintiff.

The learned Additional Subordinate Judge more or less agreed with the view of the learned Munsif so far as the liability of the opposite party was concerned. In my opinion, however, Order 39, Rule 2(3) which has been variously interpreted either as being in the nature of punishment for contempt or semi-criminal, or part of independent civil jurisdiction, is, in any case, of a penal character as the person found” guilty of breach of the order is liable to imprisonment. In the circumstances, it is necessary to record that the breach of the order is made with the intention to defy the authority of the Court issuing the injunction.

In the present case, however, it seems that the order of injunction was passed on 25-3-1952, and an appeal was preferred against that in the Court of the District Judge which was heard by the learned Additional Subordinate Judge who remanded the case by order dated 12-6-1952, laying down the criterion which was to be followed in determining whether the injunction order would be allowed to continue or would be vacated. The grievance made on behalf of the petitioner was that after the said order of remand and before the disposal of the
matter by the learned Munsif further constructions were made on the disputed land by the opposite party between 13-7-1952 and 18-7-1952, by erecting a staircase and putting a roof on the verandah.

The pleader Commissioner, however, Mr. Amir Chand Lal, whose evidence was referred to by the learned Munsif, said that the constructions complained of were on plot No. 2451 and as such they would fall beyond the plots of the plaintiff, namely, 2448 and 2452. As a matter of fact Mr. D. P. Sinha, the learned Additional Subordinate Judge, actually allowed the appeal against the order of injunction filed by the opposite party on 13-3-1953, on this ground. It was obvious, therefore, that the constructions in question were made bona fide, assuming that they were put up after the order of remand by the learned Additional Subordinate Judge of Arrah in which there was a clear direction that if the constructions were on plot No. 2451, the order of injunction must be vacated.

It may well be that in fact the injunction order was not vacated by the learned Additional Subordinate Judge and that was actually pending when the constructions were put up, but in view of the directions of the learned Additional Subordinate Judge, it might well be that the opposite party, being sure of the position that they had not encroached upon any portion of plot Nos. 2448 and 2452 thought of proceeding on with the construction on plot No. 2451 as the injunction order would not operate in that event as directed by the appellate Court.

In the circumstances, it seems to me that the breach of the order was not with the intention to defy the authority of the Court and it was construction in good faith in the peculiar circumstances of the case. I am accordingly not willing to interfere with the order of the learned Additional Subordinate Judge holding that the defendants-opposite party were not liable to be punished under Order 39, Rule 2(3) of the Code of Civil Procedure.

10. I uphold the order accordingly and dismiss the application and discharge the rule. Parties to bear their own costs.

Sinha, J.

11. I agree.

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