Tammana Suryanarayana vs Parachuri Chiranjeevi and Others

K.B. Siddappa, J.—The petitioner-plaintiff had filed a suit (O.S. No. 574 of 1990) on the file of the I Additional District Munsif, Rajahmundry. He has also filed I.A.No. 890 of 1990 for attachment of the immovable properties belonging to the respondents, shown as Item No. l in the schedule attached to the petition. During the course of arguments, the respondents filed counters stating that they would not alienate the petition schedule properties till the disposal of the suit. The undertakings given by them were recorded by the Court in the following terms:-

"Heard the counsel for the respondent. It is represented that he deposited Rs. 3,771 /- into the Court and he has undertaken that he will not alienate the schedule property till the disposal of the suit. The amount of Rs. 3,771 /- shall be invested in the Bank. Petition is closed".

Now the petitioner alleges that contrary to the undertaking, the respondent alienated three shop rooms out of 5 rooms, to 3rd parties. Therefore, they have violated the undertaking given by them and that they are liable to be punished under Order 39 Rule 2-A of the Code of Civil Procedure.

The Lower Court considered the rival contentions and dismissed the petition on the ground that the order dated 4-9-1990 does not speak that the affidavit filed by the respondents undertaking not to alienate the suit schedule property till the disposal of the suit is recorded and, therefore, he is not inclined to accept the case of tine petitioner.

Aggrieved by the said order, the present revision petition is filed by the petitioner-plaintiff.

Learned counsel appearing for the petitioner submitted that the undertaking given by the respondents was made order of the Court. He filed a certified copy of the order of the Lower Court. The order reads as follows:

"Heard, counsel for the respondent that he deposited an amount of Rs. 3,771 /- in the Court and he has undertaken that he will not alienate the suit schedule property till the disposal of the suit. The amount of Rs. 3,771 /-already deposited in the Court shall be invested in the F.D.R. for three years. Hence petition closed".

The affidavits of the respondents, wherein they have undertaken not to alienate the suit schedule property, are also filed. They clearly mentioned that they undertake not to alienate the suit schedule property till the disposal of the suit. The undertaking is made order of the Court. There cannot be any doubt on this aspect. There is also no doubt that the respondents contrary to the undertaking have alienated three rooms out of five rooms. Certainly there is violation of the undertaking which was made order of the Court, dated 4-9-1990. The respondents in their counter did not dispute that they sold some of the Malgies. They clearly stated that the respondents in their capacity as partners of the 1st defendant-firm sold away part of the property under sale deeds dated 1-3-1991, 25-4-1991 and 31-12-1991 for discharging the debts due by the firm. They executed the three sale deeds not in their personal capacity but in the capacity of partners of 1st defendant-firm,, which is not a party either to I.A.No. 890 of 1990 or in this LA. Therefore, there is no violation of the order. Moreover, the suit is bad for non-joinder of the firm and attachment before judgment is also not called for, etc.

Whether the suit is bad for non-joinder of the firm etc., will be considered in the main suit itself, but here we are concerned whether the respondents violated the undertaking they have given. There is no dispute that they have alienated the suit schedule property. Therefore, they have certainly violated the order of the Court, dated 4-9-1990.

Learned counsel appearing for the respondents submitted that there is no positive order or injunction under Order 39 Rules 1 and 2. The undertaking making the order of the Court does not amount to an injunction, therefore, the petition under Order 39 Rule 2-A of the CPC to punish the respondents does not lie. He also submitted that if there is any violation of the undertaking and the respondents have alienated contrary to the undertaking, the alienation is null and void by virtue of Section 64 of C.P.C. Except that, there is no consequence for the violation of the order.

I am unable to agree with this contention. In A.B. Gurumurthi Chetty Vs. Sella Perumal Pillai, , Madras High Court held in similar circumstances as "the natural meaning of the order is that an attachment is not necessary because of the undertaking". It also held "I hold that when a Court accepts an undertaking given by party, its order amounts in substance to an injunction restraining him from acting in breach thereof. The form only implies that the Court is prepared to deal with him honourably in the expectation that he will treat his undertaking as equivalent to an order of the Court. It does not seem to me to come with any grace from the mouth of the person who has given such an undertaking to say that because the Court was good enough to accept that undertaking and did not pass an order of its own, he is not in a position of a person bound by the order of the Court". In Babulal Parekh Vs. Lachminarayan Swalram and Others, , the Orissa High Court held that a violation of an undertaking given to the Court is punishable in contempt and that it is well settled that the proceedings in contempt are quasi-criminal in nature and the order punishing the contemners, generally speaking, should be treated as order in criminal cases. It is further held, that the Subordinate Courts have full jurisdiction and powers to proceed in contempt cases under Order 39 for violation of undertakings given to them and when a Court accepts an undertaking given by a party, its order amounts in substance to an injunction restraining him from acting in breach thereof.

I am in respectable agreement with the ratio of the above judgments. Therefore, there is certainly violation in this case of undertaking and the petition under Order 39 Rule 2 (1) (sic. 2-A) is maintainable and the respondents ate liable to be punished for admitted violation of the undertaking.

It is true that any alienation after attachment is void by virtue of Section 64 of the Code of Civil Procedure. It is held in Dular Singh Vs. Ram Chander and Another, that Section 64 applies equally to attachments after decree and before Judgment. But, that is not the answer to ay that no petition is maintainable and the respondents are not liable to the punished for violation of the undertaking. In this case the respondents have violated the undertaking. Therefore, they are liable to be punished by virtue of Order 39 Rule 2-A of the Code of Civil Procedure.

Therefore, I direct the respondents to be detained in Civil Prison for a period of 15 days on usual terms.

The revision petition is, accordingly, allowed with costs.