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.

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.

IN THE HIGH COURT OF ALLAHABAD

Civil Revn. No. 323 of 1972

Decided On: 04.04.1974

Uttam Bhatia Co. Vs.  Babu Ram and Anr.

Hon'ble Judges/Coram:
Gyan Chand Mathur, J.
 Citation : AIR 1974 All 454

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How to appreciate evidence of legal necessity in case of sell of ancestral property of Hindu joint family?

The   learned   District   Judge   has   considered   this   aspect   in
paragraphs   15   and   16.   After   considering   the   evidence   on   record,   the
learned   District   Judge   observed   that,   no   doubt,   there   was   outstanding
amount of loan of Tagai.   However, there was no pressing demand for
recovery of said loan.   There was neither any attachment nor any notice for
sale of the suit land.   At the most, it can be said that there was dues and
the said dues are from 1954­55.   The liability was not pressing liability.   In
the case of Smt. Rani and another (supra), the Apex Court has held that
legal necessity does not mean actual compulsion. It means pressure
upon   the   estate   which   in   law   may   be   regarded   as   serious   and
sufficient.  The onus of legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made proper and bonafide
enquiries about the existence of the necessity and that he did all that was
reasonable to satisfy himself as to the existence of the necessity.  Perusal of
the recitals in the sale deed shows that the property was sold for meeting
private expenses.  It, however, does not refer to either Govt. debt or debt

obtained privately.  No material is produced on record by the defendant No.
2 as regards the legal necessity at the time of the execution of the sale deed
dated 08/04/1969.   No material is also produced by defendant No. 2 to
show that he had made proper and bonafide enquiries and he did all that
was reasonable to satisfy himself as to the existence of the necessity.   If the
tests laid down by the Apex Court in the case of Smt. Rani and another
(supra) are applied to the present case, I do not find that the learned
District Judge committed any error in holding that the defendant No. 2 did
not establish expenses of legal necessity.  
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.103 OF 1990
 Basheer s/o. Amir Patel

VERSUS
 Dnyaneshwar S/o. Bhikarchand
    
                  CORAM : R.G.KETKAR, J.
DATE OF JUDGMENT : 24th NOVEMBER,2014.
Citation; 2015(5) MHLJ 853

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Whether litigant is supposed to sell his property for paying court fees?

 The concept of "not possessed of sufficient means" is

essentially a negative factor to be established by the claimant


and hence can only be proved by him by adducing            positive

evidence of his assets, needs and expenditure and to convince

the Court that with the available resources, he is unable to set

apart sufficient funds to pay court fee. The duty of the Court is

only to decide, on the basis of materials furnished, whether

reasonable grounds have been made out to believe such claim.

This is all the more so, because of the social reality that the

economic situation, availability of resources, and expenditure of

a person depend on various factors, including the size of the

family, the number of dependents, other pressing necessities,

priorities in life, the cost of living index, status in the society,

etc. and hence, the person claiming indigency himself would be

the best judge to evaluate his priorities in life, which cannot be

substituted by the views of the Court unless the court finds it

thoroughly unreasonable.     Since the right to life under Article

21 of the Constitution of India takes in right to dignified life,

each person is entitled to make necessary provision for a

reasonable life of himself and family, apart from the bare

necessities of food, shelter and clothing. The courts should not

use the golden scale to weigh the income and expenditure of a


person and decide how best he could have utilized his means,

reduce the expenditure and could have saved money for paying

court fees. In this regard, the observation of the court below

that, even utilising the money from the available source for

payment of court fee, will not in any way affect the decent

living of the petitioners and that will not lead them to poverty is

mispleaded.

      15. In spite of several decisions mandating that the litigants

are not expected to sell their property, unfortunately, the court

below arrived at the wrong conclusion that, they could have

mortgaged the property and raised the loan. Further, Paulose

case (supra) was distinguished on a factual premise that, in that

case the extent of land involved was only one and half cents.

The constitutional mandate, the laudable object of Order XXXIII

and spirit of all the decisions referred to above, uniformly calls

for a liberal approach while considering applications for

indigency.

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

         THE HONOURABLE MR.JUSTICE THOTTATHIL  B.RADHAKRISHNAN
                                   &
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS

         TUESDAY, THE 21ST DAY OF JULY 2015

                         FAO.No. 98 of 2015 ()
                      

            VELUTHAPARAMBATH VASANTHA,W/O.VASU,AGED 49,
     
 Vs

           PURTHALATHKUNIYIL ALAKKADAN CHATHU,S/O.KRISHNAN,

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Whether agent is liable for giving of accounts if he sell property of principal unauthorisedly?

Commercial - recovery - suit for recovery - it was proved that some bales of cloth were undoubtedly entrusted to defendant for being deposited in their godown were sold by defendants - sale proceeds not paid to plaintiff - once it was proved that defendant was in possession of bales in question which formed part of bales of cloth it was duty of defendant to account for same - defendant has given no explanation for same - oral as well as documentary evidence led by plaintiff showed that goods in question were sold by defendant but sale proceeds were not paid to plaintiff - claim of plaintiff as regards to goods in question justified and cannot be disallowed.

Supreme Court of India

Madan Gopal Kanodia vs Mamraj Maniram And Ors. on 15 January, 1976

Equivalent citations: AIR 1976 SC 461, (1977) 1 SCC 669

Bench: R Sarkaria, S M Ali

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Whether contract for sell of property can be specifically enforced against family including minors?

It is settled law that the manager of a joint Hindu family which includes minors can enter into a contract for the sale or purchase of immovable property and the contract can be specifically enforced against the family including the minors provided the transaction is for legal necessity or for the benefit of the estate. 

IN THE HIGH COURT OF NAGPUR

Second Appeal No. 534 of 1946

Decided On: 10.03.1952

Appellants: S.K. Buty
Vs.
Respondent: Shriram Hari Tambe

Hon'ble Judges/Coram:
Deo, J.

Citation: AIR1954Nag65, [1953]ILR Nag57

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