Sunday, 5 March 2017

When property attached for breach of injunction order should not be sold?

The only question, which arises for consideration in this revision is whether on the facts and circumstances of this case, the attached property could be ordered to be sold. This Court has deleted Sub-rules (3) and (4) of Rule 2 of Order XXXIX and has added the following Rule 2-A:--
"2-A (1) In the case of disobedience to an injunction issued under Rule 1 or Rule 2, Sub-rule (2) or of breach of any terms of any such injunction the Court, in which the suit is proceeding 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 six months unless in the meantime the court directs his release.
(2) No attachment 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 and shall pay the balance, if any to the party entitled thereto."
The order of attachment of the applicants' property was passed under Sub-rule (1) of Rule 2-A. The attached property can be sold under Sub-rule (2) only if the disobedience or breach of the injunction order continues at the end of the period of attachment. The trial court held that no further breach or disobedience of the injunction order was committed by the applicants after the attachment started and therefore, it could not be said that the disobedience or breach continued till the expiry of the period of attachment. It further held that there was no direction by the court that the earth removed was to be restored and the pits were to be filled up and, therefore, the failure of the applicants to do so could not amount to continuance of the breach of the injunction order. The appellate court has taken the view that it was immaterial whether any fresh breach of the injunction order was committed or not. It has held that since the applicants had committed the breach of the injunction order by removing the earth after digging pits in the land, the breach of the injunction order would continue until the act of digging pits and removing the earth was undone by filling up the pits with earth.
3. Learned counsel for the applicants has contended that disobedience or breach of the injunction order could be said to have continued only if the applicants, had continued to remove the earth even after the attachment of their property. He has further urged that, even if the effect of the breach on account of which the property was placed under attachment continued that could not be said to amount to continuance of the breach. According to learned counsel the provisions of Sub-rule (2) of Rule 2-A would be attracted only if after the attachment of the property a further breach of the injunction order was committed. Learned counsel for the opposite parties has on the other hand, contended that since in the present case, the applicants had dug pits on the land and removed earth they had committed a permanent and continuing disobedience or breach of the injunction order and that the disobedience or breach could be abated by the applicants only by filling up the pits with earth.
4. No case has been cited before me to show what amounts to the continuance of the disobedience or breach of an injunction order within the meaning of Sub-rule (2) of Rule 2-A or Sub-rule (4) of Rule 2 which uses the same language. Learned counsel for the opposite parties, has relied upon the decision of a Division Bench of this Court in Nawab Singh v. Mithu Lal MANU/UP/0281/1935 : AIR1935All480 . In this case, the provisions of Order XXI, Rule 32, which are somewhat analogous to the provisions of Rule 2-A of Order XXXlX came up for interpretation. Sub-rule (1) of Order XXI, Rule 32 inter alia, provides that where a decree for an injunction has been passed and the judgment-debtor has Wilfully failed to obey it the decree may be enforced by his detention in the civil prison or by the attachment of his property or by both. Sub-rule (3) provides that where the attachment has remained in force for three months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold and compensation may be awarded to the decree-holder out of the sale proceeds. It will be seen that, under this Sub-rule, the attached property can be sold if the judgment-debtor has not obeyed the decree after the attachment. In Nawab Singh's case a decree was passed, prohibiting the judgment-debtor permanently from holding a fair on certain lands. The judgment-debtor deliberately disobeyed the order and held a fair. On the application of the decree-holder, his property was attached and was subsequently ordered to be sold. Before this Court, it was urged that the property could only be sold if there was a breach after the attachment. The Division Bench rejected this contention and observed:--
"It seems to us that where the injunction is for the doing of an act, and the judgment-debtor has failed to do the act the attachment can continue for three months and if in the meantime the judgment-debtor carries out the directions contained in the decree and in that way obeys the decree his property cannot be sold. But where the injunction is for restraining him from doing an act and the judgment-debtor has already done the act in disobedience of the injunction he has made it impossible for himself to obey the decree. No doubt the property cannot be sold until three months have expired after the attachment but after the expiry of this period, it will still be impossible for the judgment-debtor to show that he has obeyed the decree inasmuch as he has really irrevocably disobeyed it. If this were not the interpretation then the result would be that where there is an injunction restraining a defendant from demolishing a house and he deliberately disobeys the injunction and demolishes the house no compensation can be awarded to the decree-holder in execution because the judgment-debtor will be able to say that he has not demolished the house a second time after the attachment. In our opinion where the judgment-debtor has, by his own act made it impossible for himself to obey the decree he cannot escape from the liability to pay compensation which will be enforced after the attachment has subsisted for three months."
This case certainly supports the contention of learned counsel for the opposite parties to this extent that, where by the breach of the decree for injunction the judgment-debtor makes it impossible to obey the decree, the attached property can be sold. This principle can be applied to the interpretation of Sub-rule (2) of Rule 2-A.
5. Under Sub-rule (1) of Rule 2-A the punishment for the first breach of the order of injunction is the attachment of property for one year. If there is a subsequent breach or the breach continues, then Sub-rule (2) provides for a further punishment of sale of the attached property. In order to attract the application of Sub-rule (2), there should after the attachment of the property be either a fresh breach or disobedience of the order of injunction or the original breach or disobedience should continue in the sense that obedience of the order of injunction becomes impossible. In other words the attached property can be sold in one of the following two classes of cases:--
1. If, on account of the initial breach or disobedience which led to the attachment of the property, the injunction order becomes incapable of being obeyed. Such a contingency can arise where the order of injunction prohibits the defendants from demolishing some construction and the defendant disobeys the order and demolishes the construction. Another example of this contingency is of a case where an order of injunction is passed, restraining the defendant from cutting down a tree and the defendant cuts down the tree. In both these cases the order of injunction is rendered by the breach incapable of obedience.
2. If, after the first breach, the injunction order still remains capable of being obeyed but the defendant continues to disobey it. An instance of this type will be a case where a defendant is restrained from using a particular plot of land as a passage to his field or house but he continues to use it for this purpose even after the attachment of his property.
6. There can be a third class of cases where the injunction order remains capable of being obeyed after the first breach or disobedience which led to the attachment and the defendant obeys the order and does not commit any further breach. In this case, the attached property cannot be sold. In my opinion, the present case falls in the third category of cases referred to above. The order of injunction passed by the trial court restrained the applicants from removing earth from certain plots. The applicants disobeyed the order and removed some earth from some of the plots. But they did not remove all earth from all the plots and, therefore, it cannot be said that they made it impossible for themselves to obey the order of injunction after the first breach. In fact after the property was attached the applicants could if they decided to continue to disobey the order of injunction, have removed further earth from the plots. It thus appears that the order of injunction was still capable of being obeyed after the attachment of the applicants' property and that the applicants did obey the order. It, therefore, cannot be said that the disobedience or breach continued till the end of the period of attachment. That being so the present case did not fall within the mischief of Sub-rule (2) of Rule 2-A of Order XXXIX and the attached property could not be ordered to be sold.
 Citation : AIR 1974 All 454
IN THE HIGH COURT OF ALLAHABAD
Civil Revn. No. 323 of 1972
Decided On: 04.04.1974
Uttam Bhatia Co. and Anr.
Vs.
 Babu Ram and Anr.
Hon'ble Judges/Coram:
Gyan Chand Mathur, J.


1. The opposite parties filed a suit against the applicants for a permanent injunction, restraining them from taking or digging earth from 13 plots of land. On the application of the plaintiffs, an ad interim order of injunction was passed on July 23, 1965 in terms of the relief prayed for in the plaint. It appears that the applicants committed a breach of the order of injunction and removed certain quantity of earth from some of the plots. Thereupon the plaintiffs moved an application on January 3, 1966, under Order XXXIX, Rule 2-A of the Code of Civil Procedure. This application was allowed on March 21, 1967, and certain property of the applicants was ordered to be attached. The attachment was to remain in force for a period of one year as provided in the rule. The order of the trial court was upheld in appeal and the attachment was actually made on May 11, 1968. On May 7, 1969 the plaintiffs filed another application praying that the attached property be sold and compensation be awarded to them out of the sale proceeds. The trial court dismissed the application. Thereupon the plaintiffs filed an appeal. The appeal was allowed by the Additional Civil Judge. The order of the trial court was set aside, the application of the plaintiffs was allowed and the attached property was directed to be sold. Against this order, the present revision has been filed.
2. The only question, which arises for consideration in this revision is whether on the facts and circumstances of this case, the attached property could be ordered to be sold. This Court has deleted Sub-rules (3) and (4) of Rule 2 of Order XXXIX and has added the following Rule 2-A:--
"2-A (1) In the case of disobedience to an injunction issued under Rule 1 or Rule 2, Sub-rule (2) or of breach of any terms of any such injunction the Court, in which the suit is proceeding 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 six months unless in the meantime the court directs his release.
(2) No attachment 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 and shall pay the balance, if any to the party entitled thereto."
The order of attachment of the applicants' property was passed under Sub-rule (1) of Rule 2-A. The attached property can be sold under Sub-rule (2) only if the disobedience or breach of the injunction order continues at the end of the period of attachment. The trial court held that no further breach or disobedience of the injunction order was committed by the applicants after the attachment started and therefore, it could not be said that the disobedience or breach continued till the expiry of the period of attachment. It further held that there was no direction by the court that the earth removed was to be restored and the pits were to be filled up and, therefore, the failure of the applicants to do so could not amount to continuance of the breach of the injunction order. The appellate court has taken the view that it was immaterial whether any fresh breach of the injunction order was committed or not. It has held that since the applicants had committed the breach of the injunction order by removing the earth after digging pits in the land, the breach of the injunction order would continue until the act of digging pits and removing the earth was undone by filling up the pits with earth.
3. Learned counsel for the applicants has contended that disobedience or breach of the injunction order could be said to have continued only if the applicants, had continued to remove the earth even after the attachment of their property. He has further urged that, even if the effect of the breach on account of which the property was placed under attachment continued that could not be said to amount to continuance of the breach. According to learned counsel the provisions of Sub-rule (2) of Rule 2-A would be attracted only if after the attachment of the property a further breach of the injunction order was committed. Learned counsel for the opposite parties has on the other hand, contended that since in the present case, the applicants had dug pits on the land and removed earth they had committed a permanent and continuing disobedience or breach of the injunction order and that the disobedience or breach could be abated by the applicants only by filling up the pits with earth.
4. No case has been cited before me to show what amounts to the continuance of the disobedience or breach of an injunction order within the meaning of Sub-rule (2) of Rule 2-A or Sub-rule (4) of Rule 2 which uses the same language. Learned counsel for the opposite parties, has relied upon the decision of a Division Bench of this Court in Nawab Singh v. Mithu Lal MANU/UP/0281/1935 : AIR1935All480 . In this case, the provisions of Order XXI, Rule 32, which are somewhat analogous to the provisions of Rule 2-A of Order XXXlX came up for interpretation. Sub-rule (1) of Order XXI, Rule 32 inter alia, provides that where a decree for an injunction has been passed and the judgment-debtor has Wilfully failed to obey it the decree may be enforced by his detention in the civil prison or by the attachment of his property or by both. Sub-rule (3) provides that where the attachment has remained in force for three months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold and compensation may be awarded to the decree-holder out of the sale proceeds. It will be seen that, under this Sub-rule, the attached property can be sold if the judgment-debtor has not obeyed the decree after the attachment. In Nawab Singh's case a decree was passed, prohibiting the judgment-debtor permanently from holding a fair on certain lands. The judgment-debtor deliberately disobeyed the order and held a fair. On the application of the decree-holder, his property was attached and was subsequently ordered to be sold. Before this Court, it was urged that the property could only be sold if there was a breach after the attachment. The Division Bench rejected this contention and observed:--
"It seems to us that where the injunction is for the doing of an act, and the judgment-debtor has failed to do the act the attachment can continue for three months and if in the meantime the judgment-debtor carries out the directions contained in the decree and in that way obeys the decree his property cannot be sold. But where the injunction is for restraining him from doing an act and the judgment-debtor has already done the act in disobedience of the injunction he has made it impossible for himself to obey the decree. No doubt the property cannot be sold until three months have expired after the attachment but after the expiry of this period, it will still be impossible for the judgment-debtor to show that he has obeyed the decree inasmuch as he has really irrevocably disobeyed it. If this were not the interpretation then the result would be that where there is an injunction restraining a defendant from demolishing a house and he deliberately disobeys the injunction and demolishes the house no compensation can be awarded to the decree-holder in execution because the judgment-debtor will be able to say that he has not demolished the house a second time after the attachment. In our opinion where the judgment-debtor has, by his own act made it impossible for himself to obey the decree he cannot escape from the liability to pay compensation which will be enforced after the attachment has subsisted for three months."
This case certainly supports the contention of learned counsel for the opposite parties to this extent that, where by the breach of the decree for injunction the judgment-debtor makes it impossible to obey the decree, the attached property can be sold. This principle can be applied to the interpretation of Sub-rule (2) of Rule 2-A.
5. Under Sub-rule (1) of Rule 2-A the punishment for the first breach of the order of injunction is the attachment of property for one year. If there is a subsequent breach or the breach continues, then Sub-rule (2) provides for a further punishment of sale of the attached property. In order to attract the application of Sub-rule (2), there should after the attachment of the property be either a fresh breach or disobedience of the order of injunction or the original breach or disobedience should continue in the sense that obedience of the order of injunction becomes impossible. In other words the attached property can be sold in one of the following two classes of cases:--
1. If, on account of the initial breach or disobedience which led to the attachment of the property, the injunction order becomes incapable of being obeyed. Such a contingency can arise where the order of injunction prohibits the defendants from demolishing some construction and the defendant disobeys the order and demolishes the construction. Another example of this contingency is of a case where an order of injunction is passed, restraining the defendant from cutting down a tree and the defendant cuts down the tree. In both these cases the order of injunction is rendered by the breach incapable of obedience.
2. If, after the first breach, the injunction order still remains capable of being obeyed but the defendant continues to disobey it. An instance of this type will be a case where a defendant is restrained from using a particular plot of land as a passage to his field or house but he continues to use it for this purpose even after the attachment of his property.
6. There can be a third class of cases where the injunction order remains capable of being obeyed after the first breach or disobedience which led to the attachment and the defendant obeys the order and does not commit any further breach. In this case, the attached property cannot be sold. In my opinion, the present case falls in the third category of cases referred to above. The order of injunction passed by the trial court restrained the applicants from removing earth from certain plots. The applicants disobeyed the order and removed some earth from some of the plots. But they did not remove all earth from all the plots and, therefore, it cannot be said that they made it impossible for themselves to obey the order of injunction after the first breach. In fact after the property was attached the applicants could if they decided to continue to disobey the order of injunction, have removed further earth from the plots. It thus appears that the order of injunction was still capable of being obeyed after the attachment of the applicants' property and that the applicants did obey the order. It, therefore, cannot be said that the disobedience or breach continued till the end of the period of attachment. That being so the present case did not fall within the mischief of Sub-rule (2) of Rule 2-A of Order XXXIX and the attached property could not be ordered to be sold.
7. The revision is accordingly allowed, the judgment of the lower appellate court is set aside and the order of the trial court is restored. In the circumstances of this case, parties will bear their own costs of this revision.
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