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Case Number

Letters Patent Appeal No. 345 of 1914.

Advocates

Mr. J. L. Rosario, for the Appellants.
Mr. A. Sundaram, for the Respondent.

Judges

Sir John Wallis, C.J
Abdur Rahim
Srinivasa Aiyangar, JJ.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The District Munsif had granted a temporary injunction under Order 39, Rule 2(2). An alleged breach of that injunction occurred and an application for arrest (committal) or attachment of property under Order 39, Rule 2(3) was made to the same District Munsif, who declined to order arrest or attachment. An appeal was brought under Order 43, Rule 1(r) to the District Judge seeking review of the Munsif's refusal. The appeal was considered by a bench including the Chief Justice, Mr. Justice Miller (who had previously refused to revise the District Judge's order), Abdur Rahitn, J., and Srinivasa Aiyangar, J. The principal procedural wrinkle noted in the opinion is that the injunction had been disobeyed and the committal/attachment application was put in while the suit was pending, but the order refusing committal/attachment was made after the suit had been dismissed. The ultimate disposition recorded in the opinion is that the appeal was dismissed with costs.

Legal Issues Presented

Whether, under Order 43, Rule 1(r), an appeal lies to the District Court from the refusal of the District Munsif to take action under Order 39, Rule 2(3) for an alleged breach of a temporary injunction granted under Order 39, Rule 2(2).
Whether the powers of the Court to take action for breach are affected where the injunction was disobeyed and the application to commit was made while the suit was pending but the order refusing committal/attachment was made after the suit was dismissed.
Whether the Court can order imprisonment (committal) without first ordering attachment of property (i.e., whether attachment must precede imprisonment as a procedural or substantive requirement).

Arguments of the Parties

Appellant's Arguments (as presented by Mr. Rosario)

No appeal lies from an order of the District Munsif declining to order arrest or attachment of property for disobedience of an interlocutory injunction (i.e., that an order under O.39 R.2(3) by the Munsif is not appealable under O.43 R.1(r)).
The injunction had ceased to exist by reason of the dismissal of the suit in the First Court before the Appellate Court interfered, and therefore the subsequent order (or refusal) should be affected by that dissolution.
The Court has no right to order arrest and imprisonment without first ordering attachment of property; any order of imprisonment should follow an order of attachment (i.e., imprisonment cannot be the first coercive measure).
It was additionally contended that the wording “the Court granting the injunction” in O.39 R.2(3) was intended to limit which court could pass the committal/attachment order and, when read with provisions such as Section 104 (and Section 104(2)), might have been introduced to prevent an Appellate Court from ordering imprisonment (since further appeal might be limited under the statutory scheme).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jarmain v. Chatterton	Supports the proposition that an appeal lies where the First Court declines to order committal or sequestration of property.	The court cited it as an authority showing that English law allows appeals in such circumstances, while noting that appellate courts would not ordinarily interfere with the discretion exercised by the First Court.
Eastern Trust Co. v. McKenzie, Mann & Co.	Supports the proposition that dissolution of an injunction after a breach does not excuse prior disobedience of the injunction.	The court relied on it to hold that the fact the injunction was later dissolved (by dismissal of the action) could not excuse the party who had already disobeyed while the injunction was in force.

Court's Reasoning and Analysis

The opinion contains substantive reasoning by the Chief Justice and a fuller separate reasoning by Srinivasa Aiyangar, J.; Abdur Rahitn, J. simply agreed.

Chief Justice's reasoning (concise):

The primary question was whether an appeal lies to the District Judge under O.43 R.1(r) from the Munsif's refusal to take action under O.39 R.2(3) for breach of an interlocutory injunction. Historical statutory context showed that appeals lay from such refusals under earlier provisions (Section 94 of Act VIII of 1859 and Section 588(24) of the Code of 1882, corresponding to the present O.43 R.1(r)).
It was important to prevent prejudice to the party in whose favour an injunction had been granted by denying appeal from refusals to act. The change in wording from the old code (Section 493) to O.39 R.2(3) — specifically the introduction of the phrase “the Court granting the injunction” — was examined. The Chief Justice declined to treat those words as a limitation on appellate jurisdiction unless they were rendered meaningless otherwise, and observed they could instead be intended to confine original applications to the court that granted the injunction (for example where the injunction was granted by an Appellate Court or the matter had been transferred).
The suggestion that the alteration aimed to prevent an Appellate Court making an order of imprisonment (because of appeal limitations in Section 104) was rejected as unnecessary and overbroad; if such a restriction had been intended it could have been stated expressly in O.43 R.1(r) rather than obscured by O.39's language.
The timing issue (application made while suit pending but order made after dismissal) did not affect the Court's power to take action for the breach; the breach having occurred while the injunction was in force could not be excused by a later dissolution.
There was no foundation for the contention that imprisonment could only be ordered after attachment.

Srinivasa Aiyangar, J.'s reasoning (detailed):

He set out the statutory framework: general interlocutory jurisdiction (Section 94 of the Code), Orders 38–40 (with O.39 relating to interlocutory injunctions), and appeals from orders (Section 104 and Order 43, Rule 1). Under O.43 R.1(r) an appeal is allowed from an order under R.2 of O.39, and therefore the Munsif's refusal under O.39 R.2(3) is an appealable order.
He rejected the construction that the phrase “the Court which granted the injunction” restricts appellate jurisdiction. He emphasized the fundamental rule that an Appellate Court only passes the order that the First Court should have passed (citing Section 107 C.P.C.), and explained that the drafting change from the old code necessitated the new wording but did not change the substantive jurisdictional scheme.
He explained that the omission of the words “may be enforced” from the old Section 493 (in the corresponding new rule) likely reflects that attachment or imprisonment are punishments for past disobedience rather than direct enforcement of the injunction, which justified drafting changes without altering the appealability.
He gave examples showing the proper reach of the phrase “Court granting the injunction” — for instance, where an Appellate Court granted an injunction pending appeal, enforcement proceedings for breach would appropriately lie before that Appellate Court, not the Trial Court. He also noted that where business is transferred between courts, the transferee court could entertain original applications under Section 150.
Addressing policy and statutory safeguards, he referred to Section 104's provision of appeals in cases affecting personal liberty (analogous to the Judicature Act) as a protection against superior courts using their rule-making power to abolish appeals in such cases.
On the second issue, he held that the breach had occurred while the injunction was in force and when the application was made, so subsequent dissolution (by dismissal) did not excuse the prior disobedience—citing Eastern Trust Co. v. McKenzie, Mann & Co.
On the third point, he concluded that despite differences in language the substantive meaning is the same: the Court has discretion to order either arrest (committal) or attachment and is not required to order attachment before ordering imprisonment. He explained that Mr. Rosario's construction would produce an anomalous result that the Court could order attachment alone or attachment with imprisonment, but not imprisonment alone. He referred to English practice (and Oswald on Contempt) where attachment/committal or sequestration (for corporations) are tools used, and to the evolution of practice allowing concurrent measures.
Overall, Srinivasa Aiyangar, J. agreed with dismissal of the appeal and that the District Judge had jurisdiction to pass the order under appeal.

Holding and Implications

Holding:

APPEAL DISMISSED. The court held that an appeal lay to the District Judge under Order 43, Rule 1(r) from the refusal of the District Munsif to take action under Order 39, Rule 2(3), that the District Judge had jurisdiction to pass the order under appeal, and that there was no basis to require attachment before ordering committal (imprisonment). The appeal was dismissed with costs.

Implications:

Direct effect on the parties: The District Judge's jurisdiction to hear the appeal and to pass the order was affirmed, the exercise of discretion by the lower court was not interfered with on appeal, and the appellant's challenge was rejected; the appeal was dismissed with costs.
On broader implications: The opinion interprets the existing procedural code provisions (including O.39 R.2(3) and O.43 R.1(r)) to permit appeals from refusals to order committal or attachment for breach of interlocutory injunctions and rejects a restrictive construction that would bar appellate orders of committal. The court relied on statutory construction, prior practice under earlier codes, and analogy to English authorities. The opinion does not state that it is establishing a novel precedent beyond construing the relevant provisions; it addresses the proper interpretation and application of the existing code provisions in the circumstances of this case.

Disposition

The appeal was dismissed with costs. Abdur Rahitn, J. agreed with the result and Srinivasa Aiyangar, J. concurred with the order and provided the detailed reasoning reproduced above.

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Ottapurakkal Thazath Suppi And Others (Petitioners In C. R. P. No. 772 Of 1912, On The File Of The High Court). v. Sayid Alabi Mashur Koyanna Koya Kunhi Koya ( In Do).

The Chief Justice.—The main question in this appeal is whether under O. 43, R. (1) (r) an appeal lay to the District Court from the refusal of the District Munsif to take action under O. 39, R. 2 (3), for an alleged breach of a temporary injunction granted under O. 39, R. 2 (2). It is quite clear that an appeal lay in a similar case under Sect. 94 of Act VIII of 1859, and also under Sect. 588 (24) of the Code of 1882, which corresponds to O. 43, R. (1) (r); and that such appeals lay not only from orders in exercise of the powers conferred by the section but also from orders refusing to exercise such powers. It is also clear that refusal by the Court to take action on the breach of an injunction might seriously prejudice the party in whose favour the injunction had been granted, and it is said to be likely that the Legislature intended to affect such right of appeal when it recast the language of Sect. 493, of the old code when enacting it in the present code. The alteration is that, whereas in Sect. 493, it was provided generally that in case of disobedience the injunction might be enforced by imprisonment or attachment, it is provided in O. 39, R. 2 (3), that “the Court granting the injuction” may order the attachment or imprisonment; and it is said that those words constitute a prescribed limitation under Sect. 107 of the power which the Appellate Court would otherwise have under that section to pass the order which might have been passed by the Court of First Instance. In support of this contention attention was called to Sect. 104 (h), which provides for an appeal from an order under any of the provisions of the code imposing fine, or detention, otherwise than in the execution of a decree and to the provision in Sect. 104 (2) that no appeal shall lie from any order passed in appeal under this section, which by virtue of sub-sect. (1) (A), includes orders made on appeal under O. 43 (1) (r); and it was suggested that the alteration in O. 39, R. 2 (3), was introduced to prevent an order of imprisonment being made by the Appellate Court, from which there is no further appeal under the section. If, however, this was the object of the alteration, it goes further than was necessary, as the rule would equally prohibit appeals from a refusal to order attachment. Further, if it had been desired to restrict the right of appeal from orders under O. 39, R. 2, in this way, nothing would have been easier than to say so expressly in O. 43 (1) (r), which is the provision dealing with appeals from orders under the rule in question, instead of in O. 39, R. 2, which deals with original orders. It is not in my opinion permissive to read the words “the Court granting the injunction” as restricting the right of appeal, unless they would otherwise have no effect, whereas they may have the effect of preventing original applications in respect of breaches of the injunction being made to any other Court than that which granted the injunction, as for instance, in the case of the injunction having been granted by the original Court and the breach having occurred after an appeal had been preferred, or possibly after the case had been transferred.

As regards the other points taken, whereas here the injunction was disobeyed and the application to commit was put in while the suit was pending, but the order was made after the suit was dismissed, that does not in my opinion affect the powers of the Court to take action for the breach. Lastly, there is, in my opinion, no foundation for the contention that the Court can only make an order of imprisonment after an order of attachment.

I am therefore of opinion that the appeal lay to the District Judge and that he had jurisdiction to pass the order. Mr. Justice Miller has refused to revise that order and I am not prepared in this case to interfere in appeal with the exercise of his discretion. In the result the appeal is dismissed with costs.

Abdur Rahitn, J.—I agree.

Srinivasa Aiyangar, J.—Three points are raised by Mr. Rosario in this appeal. (1) That no appeal lies from the order of the District Munsif declining to order arrest or attachment of property for disobedience of an interlocutory injunction. (2) That when the Appellate Court interfered, the injunction had ceased to exist by reason of the dismissal of the suit in the First Court. (3) That the Court had no right to order arrest and imprisonment without first ordering attachment of property.

General jurisdiction to make interlocutory orders in pending suits is conferred by Sect. 94 of the code. Detailed provision for the exercise of such jurisdiction is to be found in Os. 38, 39 and 40. O. 39 relates to interlocutory injunctions. General jurisdiction to entertain appeals from orders is conferred by Sect. 104 of the code. O. 43, R. 1 makes provision for appeals from orders made under rules as provided for in cl. (1) of Sect. 104. Under cl. (r) of R. 1 of O. 43, an appeal is allowed from an order under R. 2. The injunction in the present case was granted under O. 39, R. 2, by the District Munsif. The application for arrest and attachment was also made under cl. (3) of R. 2, to the Court which granted the injunction, (i.e), the Munsif. The order in question passed by the Munsif declining to order arrest or attachment under cl. (3) of R. 2 is obviously an order under R. 2 and would therefore be appealable. But it was argued that the introduction of the words “the Court which granted the injunction” in cl. (3) of R. 2 showed that an order under that clause can only be passed by the Court which granted the injunction and no other Court even in appeal can do so. This construction ignores the fundamental rule that an Appellate Court only passes the order which the First Court should have passed. In many cases applications are made and in all cases suits filed in Trial Courts, whose duty it is to pass orders or make decrees; and in appeals, where the Appellate Court interfere, they only pass such orders as the First Court should have passed. (Sect. 107 C.P.C) The introduction of the words “the Court which granted the injunction” in the new code, words which are not to be found in the corresponding Sect. 493 of the old code, is merely due to the change in the method of drafting. It is to be observed that the words “may be enforced “, found in Sect. 493, have been omitted in the corresponding rule and the omission has necessitated the redrafting of the rule in the form in which it stands. An order for attachment of the property, or imprisonment of the person of a party guilty of his disobedience of an injunction, is not strictly speaking enforcing the order of injunction. It is really a punishment for past disobedience. That was probably the reason for the omission of the words. Full scope can be given to the words ‘Court granting the injunction’ by construing them as applicable to the original petition. For example if an injunction is granted by an Appellate Court, pending an appeal from a decree, the application to enforce that injunction in the case of breach, could be made only to the Appellate Court; for in that case the Trial Court before whom no action is pending would not be in a position to entertain an application. That must be the result even under the old code. It is clear that disobedience of an order of injunction passed in appeal could not be punished by the Court which tried the suit, as Sect. 36 or 37 corresponding to Sect. 649 of the old code does not apply. Where the business of one Court is transferred to another, the Court to which the business is so transferred, may, I think, under Sect. 150 entertain an original application for attachment or arrest under cl. (3) of R. 2, of O. 39. Attention was drawn to Sect. 104 which provides an appeal in cases of fine and imprisonment. That provision was made in the body of the code in analogy to the Judicature Act of 1894, which allows an appeal without leave in all cases, where the liberty of the subject is concerned, to prevent the right being taken away by rules passed by Superior Courts by virtue of their rule making power. In the absence of such a provision in the body of the code it would be possible for the High Courts, after consulting the rule committees, to abolish the right of appeal in the cases provided for by O. 43, R. 1, including orders under O. 38, R. 4, and O. 39, R. 2, cl. (3). The argument of Mr. Rosario, if correct, leads to this result, that an order passed by the First Court for attachment of the property and its sale is not appealable as also orders declining to commit or to attach property. In England it is now settled that an appeal lies in cases where the First Court declines to order committal or sequestration of property, [See Jarmain v. Chatterton(1)], though of course the Appellate Court would not ordinarily interfere with the discretion exercised by the First Court.

The view which I have set forth above is fully supported by a passage in High on Injunctions, Sect. 1431, where the learned author says:

“An appeal from a final injunction does not suspend its operation and the “doing of the act enjoined may be punished as a contempt, notwithstanding such “appeal. And an appeal from an injunctional order does not deprive the Court “granting the writ, of the right to punish for contempt for its violation, and the “Lower Court and not the reviewing Court is the proper tribunal to entertain such “proceeding. … … where the Court of Appeals of the State has jurisdiction “to grant a supersedeas to an order of an Inferior Court dissolving an “injunction, and defendants, after the granting of such supersedeas, proceed to the “commission of the act forbidden by the injunction, such action is a contempt of “the Court of Appeals and may be punished upon proceedings in that Court.”

As regards the second question, the breach of the injunction occurred when the injunction was in force, and also when the application was made. The dissolution of the injunction owing to the dismissal of the action, which happened long after the application could in no way excuse the party who had already disobeyed it. [See Eastern Trust Co. v. McKenzie, Mann & Co.(2).]

As to the third point, I think in spite of the difference in the language the meaning is the same. The Court can, in its discretion, order either arrest or attachment of property and is not bound in the first instance to attach and then only order imprisonment. Mr. Rosario's contention leads to this result:—that the Court has power to order attachment alone or attachment and imprisonment, but not imprisonment alone. It is to be observed that the contention is not, that it is only if the attachment proves infructuous, in compelling future obedience, the writ of committal is to be issued. In England the usual order in cases of disobedience of an injunction by natural persons is attachment of the person or committal; while sequestration is the usual order passed in cases of disobedience by Corporations. [See Oswald on Contempt, page 223], The former practice seems to have been that unless there was a previous issue of a writ of attachment sequestration will not issue, but now attachment and sequestration may issue concurrently. I therefore agree in the order proposed.

Appeal dismissed.

Ottapurakkal Thazath... v. Sayid Alabi Mashur K...