- (1.) THE opposite parties filed a suit against the applicants for a perma nent 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 ap pears that the applicants committed a breach of the order of injunction and re moved certain quantity of earth from some of the plots. Thereupon the plain tiffs moved an application on January 3, 1966, under Order XXXIX, Rule 2-A of the Code of Civil Procedure. This applica tion 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 w.as actually made on May 11, 1968. On May 7, 19_69 the plain tiffs filed another application praying that the attached property be sold and compensation be awarded to them out of the sale proceeds. The trial court dismiss ed the application. Thereupon the plain tiffs 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 al lowed .and the attached property was di rected to be sold. Against this order, the present revision has been filed.
(2.) THE only question, which arises for consideration in this revision is whe ther 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 W of Rule 2 of Order XXXIX and has added the follow ing 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 mean time 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 dis obedience or breach continues the pro perty 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 en titled 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 in junction order. The appellate court has taken the view that it was immaterial whether any fresh breach of the injunc tion order was committed or not. It has held that since the applicants had com mitted 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. Learned counsel for the appli cants has contended that disobedience or breach of the injunction order could be said to have continued only if the appli cants, had continued to remove the earth even after the attachment of their pro perty. He has further urged that, even if the effect of the breach on account of which the property was placed under at tachment 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 dis obedience or breach could be abated by the applicants only by filling up the pits with earth.
(3.) NO case has been cited before me to show what amounts to the continu ance of the disobedience or breach of an injunction order within the meaning of sub-r. (2) of R. 2-A or sub-r. (4) of R. 2 which uses the same language. Learned counsel for the opposite parties, has reli ed upon the decision of a Division Bench of this Court in Nawab Singh v. Mithu Lal. AIR 1935 All 480. In this case, the provisions of Order XXI, Rule 32, which are somewhat analogous to the provisions of Rule 2-A of Order XXXIX 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 wil fully failed to obey it the decree may be enforced by his detention in the civil prison or by the attachment of his pro perty or by both. Sub-rule (3) provides that where the attachment has remained in force for three months, if the judg ment-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 proqeeds. 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 attach ment. 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. Be fore this Court, it was urged that the pro perty could only be sold if there was a breach after the attachment. The Division Bench rejected this contention and ob served:- "It seems to us that where the in junction 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 direc tions 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 in asmuch as he has really irrevocably dis obeyed it. If this were not the interpre tation 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 compensa tion can be awarded to the decree-holder in execution because the judgment-debtor will be able to say that he has not demo lished 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 sub sisted for three months." This case certainly supports the conten tion 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.;