S.Acharya, J. - (1.)THE Appellant filed Title Suit No. 256 of 1969 in the Court of the Subordinate Judge, Cuttack. In that suit the Plaintiff filed a partition to issue an injunction restraining the Defendant, Respondent herein, from alienating the properties of the firm M/s. Kapoor Motor Engineering Works, Ranihat, Cuttack (hereinafter referred to as the 'firm') and for other reliefs. The said petition was registered as Misc. Case No. 372./69 and the trial Court, by its order dated 26.6.1969, allowed the Respondent to continue and carry on the business of the said firm on the following conditions:
1. That he will maintain the accounts showing the income and expenditure of the firm M/s. Kapoor Motor Engineering Works, Cut tack. He will also deposit the receipts of the day regularly in the Bank.

2.HE will operate the account standing in the name of M/s. Kapoor Motor Engineering Works, on joint signature of himself and the Petitioner.

He will keep an amount of Rs. 500/. with him to meet the emergent expenditure to be reimbursed from time to time after proper scrutiny and check by the Petitioner.

(2.)The Respondent preferred Misc. Appeal No. 175/69 in this Court against the aforesaid order of the trial Court. In that appeal this Court, by an interim order dated 7.10.1969, stayed the operation of the above quoted condition No. 2 of the trial Court's order on condition that the Respondent would furnish a bank guarantee of Rs. 20, 000/ -. On 3 -11 -1971 the said Misc. Appeal was dismissed with an observation that the order regarding the operation of the accounts of the firm passed on 7.10.1969 would continue till the disposal of the suit. On a perusal of the orders dated 7.10.1969 and 3 -11 -1971 of this Court in Misc. Appeal No. 175/69 it is quite evident that this Court while dismissing the said Misc. Appeal directed that till the disposal of the suit the Defendant would be able to operate the accounts standing in the name of firm only on furnishing bank guarantee of Rs. 20, 0001 - in the trial Court. In accordance with the afore said order passed in the Misc. Appeal, the Respondent furnished a bank guarantee of Rs. 20, 000/ - in the trial Court. But he did not renew the Bank guarantee after its expiry, nor did he furnish a fresh Bank guarantee in spite of the Courts order. On 24 -3 -1973 the learned Counsel for the Defendant, Respondent herein, undertook to produce a fresh bank guarantee by 9 -4 -1973. But as the same was not filed in accordance with the undertaking given on behalf of the Defendant, the Court below by its order dated 25.4.1973 observed that if the renewed or fresh bank guarantee was not filed by 30 -4 -1973 that matter would be considered as a deliberate act of not carrying out the order of the Court and the law on that matter would take its own course. Even in spite of that order the required bank guarantee was not furnished even by 30 -4 -1973 Again on a fresh move by the Defendant's lawyer on the matter, the Court below on 1 -5 -1973 granted time, as a last chance to file the renewed bank guarantee by 10 -5.1973. As the bank guarantee was still not filed by the said date, the Plaintiff filed a petition in the Court below to initiate a proceeding of contempt of Court against the Defendant for flouting the Court's order by not filing the bank guarantee and for not acting in accordance with the undertaking given by his counsel in the above matter. On the dismissal of the said petition by the Court below the Plaintiff has filed this appeal.
(3.)The said petition of the Plaintiff in the Court below was made under Order 39, Rule 2(3), Code of Civil Procedure Code. In the said petition there was no prayer for attachment of any of the properties belonging to the Defendant, nor was there any prayer to send the Defendant to civil prison for disobedience or breach of any of the Court's orders. The Petitioner in the said petition, did not append a list of properties to be attached in connection with this matter, nor did the Petitioner express his willingness to pay the expenses for sending the Defendant to civil prison. Accordingly, on the said petition, the Court could not have passed an order in the express terms of Order 39, Rule 2(3), Civil I Procedure Code.