UMESHWAR PANDEY, J. - (1.) HEARD learned Counsel for the petitioners.
(2.) THIS petition challenges the order of the appellate court dated 19.4.2006, whereby the petitioner's adjournment application has been allowed and a date for hearing of appeal as well as the application of the petitioner has been fixed. Learned Counsel contends that the temporary injunction order was passed in appeal directing the respondents to maintain status quo on the disputed property. In gross violation of the said order, the respondents defendants have commenced construction in the suit land and have also demolished certain construction of the petitioner -appellant. Therefore, an application under Order XXXIX, Rule 2A. C.P.C. for charging and punishing the respondents for violation of the order was given before the appellate court, which is still pending. This application should be decided before the appeal is disposed of because after the decision of the appeal the Court would become functus offieio for disposal of the said application given under Order XXXIX, Rule 2A, C.P.C. Learned Counsel has placed reliance on the case law of Ram Shanker and Ors. v. Suraj Prasad and Ors. 1962 ALJ 201, and has thus emphasized that the petitioner has only made a prayer in the petition for issuing a writ of mandamus to direct the appellate court to take up the petitioner's application under Order XXXIX, Rule 2A, C.P.C. and dispose of the same before the hearing and disposal of the appeal.
(3.) IN the first place the aforesaid case law of Ram Shanker's case (supra) is in reference to then existing provisions of Order XXXIX, Rule 2A. C.P.C. which read as follows : In the case of disobedience to an injunction issued under Sub -rules (1) and (2) of Rule 2A 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 civil prison for a term not exceeding six months, unless in the meantime the Court directs his release. ;