Dismissed

Prasadi Sao v. Rajendra Prasad Sao And Ors.

Jharkhand HC5 Jul 2019WPC/3209/2016

Case brief

AI extract

What is this about?

This writ petition under Article 227 of the Constitution of India challenged interim orders declining to initiate proceedings under Order XXXIX Rule 2A of the CPC. The High Court held that since the underlying interlocutory order had been quashed by the appellate court and affirmed earlier, there was no ground to interfere.

What did the court decide?

The writ petition and the interlocutory application were dismissed; the impugned orders needed no interference.

Prasadi Sao Vs Rajendra Prasad Sao And Ors. — Civil Procedure and Limitation | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.3209 of 2016

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Prasadi Sao, son of Late Sarju Sao, resident of Gandhi Nagar, P.O. & P.S. Dhansar, District Dhanbad.

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…… Petitioner

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Versus

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Rajendra Prasad Sao.

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Ram Chandra Sao.

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Respondent nos.1 and 2 are sons of Late Nanku Sao, residents of Chat Talab, Monaitand, P.O. & P.S. Dhansar, District Dhanbad.

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Shyam Sundar Dukania.

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Pushkar Dukania.

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Respondent Nos.3 and 4 are sons of not known residents of Dukania Niwa, Monaitand, P.O. & P.S. Dhansar, District Dhanbad.

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…… Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Pratik Sen, Advocate For the Respondents : Mr. Arvind Kumar Choudhary, Advocate

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05 / Dated 05th July, 2019

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The writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 30^th June, 2015 passed in Misc. Case No.4 of 2011 arising out of Title Suit No.13 of 2010 as also the order dated 04.03.2016 passed in Misc. Appeal No.26 of 2015 are under challenge by which the original court as also the appellate court have declined to initiate a proceeding under Order XXXIX Rule 2A of C.P.C. for alleged non-compliance of the order passed by the Trial Court dated 15.12.2010 under the provision of Order XXXIX Rule 1 & 2 of C.P.C.

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Mr. Arvind Kumar Choudhary, learned counsel appearing for the respondents has submitted that the order passed by the trial court under Order XXXIX Rule 1 & 2 of C.P.C. has been set aside in an appeal preferred by the respondents under the provision of Order XLIII Rule 1 (R)(S) of C.P.C. vide order dated 30^th May, 2013 which has also been affirmed by this Court in an order passed in W.P.(C) No.4062 of 2013 disposed of on 10.05.2015, therefore, his submission is that when the order passed under

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Order XXXIX Rule 1 & 2 of C.P.C. has already been set aside which is said to be not in existence, therefore, there is no question of initiating a proceeding under Order XXXIX Rule 2A of C.P.C.

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This Court after having heard the learned counsel for the parties and considering the submission that the order impugned is against the order passed by the original court as well as the trial Court whereby and whereunder the petition under Order XXXIX Rule 2A of the C.P.C. has been declined to be proceeded.

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The provision of Order XXXIX Rule 2A of C.P.C. provides that if an order has been passed under the provision of Order XXXIX Rule 1 & 2 and if the same has been violated or disobeyed by the party, a proceeding is to be initiated under Order XXXIX Rule 2A of C.P.C. for the said disobedience.

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Herein, in the instant case the order passed under the provision of Order XXXIX Rule 1 & 2 of C.P.C. has been quashed by the appellate court vide order dated 30^th May, 2013 under the provision of Order XLIII Rule 1 (S) of C.P.C. which has been affirmed by the High court in exercise of power conferred under Article 227 of the Constitution of India being W.P.(C) No.4062 of 2013 disposed of on 10.05.2015.

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It cannot be disputed that when an order has been passed by any court of law and if it has been set aside by the higher forum existence of the said order will be said to be vanished from the date when it was passed.

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When the order passed under Order XXXIX Rule 1 & 2 of C.P.C. has been set aside by higher forum, which has attained its finality, therefore, there is no question of proceeding by the court who has passed an order under Order XXXIX Rule 1 & 2 of C.P.C. in pursuance to Order XXXIX Rule 2A of the C.P.C. which is for disobedience of the order passed under Order XXXIX Rule 1 & 2.

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In view thereof, when the trial Court has not proceeded for initiating a proceeding by invoking the jurisdiction conferred under Order XXXIX Rule 2A of the C.P.C. it cannot be said that the illegality has been committed and when the same has been affirmed by the trial Court the same also cannot be said to suffer from any infirmity.

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In view of the entirety of facts and circumstances as enumerated hereinabove, this Court is of the view that the impugned order needs no interference by this Court in exercise of power conferred under Article 227 of the Constitution of India, accordingly, the writ petition fails and is dismissed.

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Interlocutory application being I.A. No.5945 of 2016 also stands disposed of.

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(Sujit Narayan Prasad, J.)

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Saurabh

Prasadi Sao v. Rajendra Prasad Sao And Ors.

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Prasadi Sao v. Rajendra Prasad Sao And Ors.

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