Tuesday 7 May 2019

What is distinction between O 39 R 2A of CPC and O 21 R 32 of CPC?

DELHI  the Supreme Court discussed categorically about the distinction between Order XXXIX Rule 2A and Order XXI Rule 32 CPC. It is held: "An application under Order XXXIX Rule 2A lies only where disobedience/breach of injunction granted or order complained of was one that is granted by the Court under Order XXXIX Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and if the case is ultimately dismissed, the interim order stands nullified automatically. On the other hand in case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution Court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. An application under Order XXXIX Rule 2-A CPC is not maintainable once the suit is decreed. Law does not permit to skip the remedies available under order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the Court has to exercise its discretion under the Contempt of Courts Act, 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation of breach of permanent injunction granted at the time of passing of the decree. It is also observed that in an undertaking given to the Court during the pendency of the suit on the basis of which the suit itself has been disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and no by way of contempt proceedings."
Supreme Court of India
Kanwar Singh Saini vs High Court Of Delhi on 23 September, 2011
Bench: P. Sathasivam, B.S. Chauhan

 Citation: 2012(1)ACR1035(SC), 2012(2)ALD58(SC), 2012 (90) ALR 24, 2012(2)ALT(Cri)SC71, 2012BomCR(Cri)522, 2011 (4) KLT(SN) 32, 2012-1-LW689, (2012)2MLJ409(SC), 2012(1)PLJR241, 2011(4)RCR(Civil)402, 2011(4)RCR(Criminal)407, 2012 115 RD291, 2011(10)SCALE725, (2012)4SCC307, 2011(6)UJ4202
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