(1) This writ petition has been filed for issuing direction to the respondent No. 2 to attach the properties of the respondent No. 3, including those sold to the respondents Nos. 4, 5 and 6 as described at the foot of the plaint in Suit No. 1586 of 1992 and for quashing the order dated 10-11-1995, passed by respondent No. 2 to the extent that it exempted the property of respondent No. 3 from attachment which has been sold to the respondents Nos. 4, 5 and 6 in contravention of the interim order passed by the trial Court.

(2) Facts and circumstances giving rise to this case are that petitioner and respondent No. 3 are mother and son and that they had inherited the bhumidari rights in the agricultural land and there was some apprehension of both the sides that the other party may alienate the land in dispute. Suit No. 1586 of 1992 was filed by the petitioner in the trial Court, wherein application for interim relief under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter called CPC) was also filed for retraining the defendant-respondent No. 3 to alienate the property. After receiving the notice of the Court, subsequent to passing of the ex parte interim order, respondent No. 3 appeared in the Court on 18-8-1992 and made a similar application that the petitioner be also restrained from alienating any part of the land. On 18-8-1992 the trial Court passed an order restraining the parties in the suit, the petitioner and other sons, including respondent No. 3, from selling the property or any part thereof to any other person till the decision of the suit. The respondent No. 3 alienated his undivided share in the land in dispute on 19-8-1992 and 27-8-1992 executing sale deeds in favour of the respondent Nos. 4, 5 and 6. Being aggrieved and dissatisfied, the petitioner plaintiff filed an application to implead respondent Nos. 4, 5 and 6 in her suit and further prayed to initiate the proceeding under the provisions of Order 39, Rule 2A, C.P.C. As the sale deeds had been executed in contravention of the interim order dated 18-8-1992, the learned Court directed attachment of the property of respondent No. 3 other than those which had been sold to respondent Nos. 4, 5 and 6 and further respondent No. 3 was directed to be detained in civil imprisonment vide order dated 10-11-1995 for two months. Being aggrieved and dissatisfied by the order dated 10-11-1995 the petitioner preferred an appeal which has been dismissed vide order dated 19-4-1996, hence this petition.

(3) Learned counsel for the petitioner has submitted that any action taken in contravention of the order of the Court is a nullity. Therefore, both the Courts below have failed to appreciate that the properties allegedly sold should also have been attached as the sale deeds have been executed in contravention of the interim order passed by the Court. Therefore, the impugned order requires interference.

(4) However, learned counsel for private respondents has submitted that once the land had been sold and a 3rd party right had been created and they had been given

possession of the land the question of attachment of the property did not arise and no interference is called for.

(5) I have considered the rival submissions made by the learned counsel for the parties and perused the record.

(6) Learned counsel for the respondent has made a submission that after execution of the sale deed the purchaser respondent Nos. 4, 5 and 6 had been put into possession of the land sold to them. In fact, the sale deeds have not been placed on record, but it remains an admitted fact that it was the respondent No. 3 who had merely sold the undivided 1/4th share in the property in dispute, and therefore, it is beyond imagination how the respondent Nos. 4 to 6 in pursuance of the alleged sale deeds could be put to possession if there had been no partition prior to execution of the sales deeds, and no partition had taken place subsequent thereto.

(7) It is settled legal proposition that a co-sharer can transfer/alienate his share but possession of the same cannot be handed over to the transferee unless the properties partition by metes and bounds. Therefore, a transferee is not permitted to take the possession of the share unless partition takes place (vide Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487 [LQ/SC/1953/77] ; M.V.S. Manikayala Rao v. Narasimhaswami, AIR 1966 SC 470 [LQ/SC/1965/211] ; and Kartar Singh v.Harjinder Singh, AIR 1990 SC 845).

(8) Honble Apex Court held as under :- "Equally, it is settled law that a copar-cener has no right to sell his undivided share in the joint family property and sale of undivided and specified items does not bind the other coparceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities it could be said that the respective share to which their principal alienor was entitled would be allottable to them as a special case."

(9) Therefore, in view of the above, even if the respondent Nos. 4 to 6 have been put in possession of the land as it was not legally permissible for them to take possession thereof, it may be presumed that they had taken possession illegally, and without any authority of law.

(10) Admittedly, there was an order dated 18-8-1992 for both the parties not to alienate any part of the property in dispute. Respondent No. 3 had executed two sale deeds in favour of respondent Nos. 4 to 6. It is settled legal proposition that sale deeds so executed are a nullity as having been executed in disobedience of the interim order of the Court. In Mulraj v. Murti Raghunathji Maharaj, AIR 1967 SC 1386 [LQ/SC/1967/61] , the Honble Supreme Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal, subsequent action would be a nullity.

(11) Similar view has been reiterated in Surajit Singh v. Harbans Singh, (1995) 6 SCC 50 [LQ/SC/1995/886] : (AIR 1996 SC 135 [LQ/SC/1995/886] ), Govt. of A.P. v. Gudepu Salloo, (2000) 4 SCC 625 [LQ/SC/2000/838] : (AIR 2000 SC 2297 [LQ/SC/2000/838] ), Hansraj Tirathram v. The Administrator, Municipality Jammu, AIR 1963 J and K 18.

(12) Therefore, there is no doubt that the alleged sale deeds are nullity, meaning there-by non est, unenforceable and inexecutable and deserve to be ignored.

(13) So far as the scope of Order 39, Rule 2-A is concerned, the issue has been considered by the Court from time to time. The said provisions are of a different nature altogether. A Constitution Bench of the Honble Supreme Court, in State of Bihar v. Rani Sona Bati Kumari, AIR 1961 SC 221 [LQ/SC/1960/212] , has categorically held that the said provisions deal with the wilful defiance of the order passed by the Civil Court. The Apex Court held that there must be wilful disobedience of the injunction passed by the Court and order of punishment be passed unless the Court is satisfied that the party was in fact, under a misapprehension as to the scope of the order or there was an unintentional wrong for the reason that the order was ambiguous and reasonably capable of more than one interpretation or the party never intended to disobey the order but conducted himself in accordance with the interpretation of the order. The proceedings are purely quasi-criminal in nature and are, thus, punitive. Even the corporate body like municipally/Government can be punished though no officer of it be a party by name. A similar view has been reiterated by the Honble Supreme Court in Aligarh Municipal Board v. Ekka Tonga Mazdoor Union , AIR 1970 SC 1767 [LQ/SC/1970/282] ; by the Allahabad High Court in Ratan Narain Mulla v. The Chief Secretary, Govt. of U.P., 1975 Cri LJ 1283; and by the Delhi High Court in M/s. Jyoti Limited v. Smt. Kanwaljit Kaur Bhasin, 1987 Cri LJ 1281.

(14) In Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240 [LQ/SC/1997/315] , the Honble Supreme Court dealt with a case of disobedience of an injunction passed under O. 39, Rules 1 and 2 of the Code, wherein the contention was raised that the proceedings under O. 39, R. 2A can not be initiated and no punishment can be imposed for disobedience of the order because the Civil Court, which granted the injunction, had no jurisdiction to entertain the suit. The Apex Court rejected the contention holding that a party aggrieved of the order has a right to ask the Court to vacate the injunction pointing out to it that it had no jurisdiction or approach the higher Court for setting aside that order, but so long the order remains in force, the party cannot be permitted to disobey it or avoid punishment for disobedience on any ground, including that the Court had no jurisdiction, even if ultimately the Court comes to the conclusion that the Court had no jurisdiction to entertain the suit. The party, who willingly disobeys the order and acts in violation of such an injunction, runs the risk for facing the consequences of punishment.

(15) In Samee Khan v. Bindu Khan, AIR 1998 SC 2765 [LQ/SC/1998/875] , the Honble Supreme Court held that in exercise of the power under O. 39, R. 2A of the Code, the Civil Court has a power either to order detention for disobedience of the disobeying party or attaching his property and if the circumstances and facts of the case so demand, both steps can also be resorted to. The Apex Court held as under (para 12) "But the position under R. 2A of Order 39, is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose the property is to be attached in the case of disobedience of the order of injunction Sub-rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment the Court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobdience ceases to continue in the meanwhile the attachment also would cease. Thus, even under Order 39 Rule 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience."

(16) Thus, in view of the above, it becomes crystal clear that the proceedings are analogous to the contempt of Court proceedings but they are taken under the provisions of O. 39, R. 2A of the Code for the reason that the special provision inserted in the Code shall prevail over the general law of contempt contained in the Contempt of Courts Act, 1972 (for short, "the Act, 1972"). Even the High Court, in such a case, shall not entertain the petition under the provisions of Act, 1972. (Vide Ram Roop Pandey v. R. K. Bhargava, AIR 1971 All 231 [LQ/AllHC/1970/36] ; Smt. Indu Tewari v. Ram Bahadur Chaudhari, AIR 1981 All 309 [LQ/AllHC/1981/177 ;] ">1981 All 309 [LQ/AllHC/1981/177 ;] [LQ/AllHC/1981/177 ;] , and Rudraiha v. State of Karnataka, AIR 1982 Kant 182 [LQ/KarHC/1980/145] ).

(17) In Md. Jamal Paramanik v. Md. Amanullah Munshi, AIR 1989 NOC 50, the Gauhati High Court held that it is not permissible for a Court to impose a fine or compensation as one of the punishments for the reason that the provisions of Order 39, Rule 2A do not provide for it. In Thakorlal Parshottamdas v. Chandulal Chunilal, AIR 1967 Gujarat 124, Honble Mr. Justice P.N. Bhagwati (As His Lordship then was) held that the punishment for breach of interim injunction could not be set aside even on the ground that the injunction was ultimately vacated by the appellate Court. In Rachhpal Singh, AIR 1985 Punj and Hry 299, a Division Bench of Punjab and Haryana High Court held that if an interim injunction had been passed and is alleged to have been violated and application for initiating contempt proceeding under O. 39, R. 2A has been filed but during its pendency the suit itself is withdrawn, the Court may not be justified to pass order of punishment at that stage. Thus, it made a distinction from the above referred Gujarat High Court decision in Thakorlal Parshottamdas (supra) that contempt proceedings should be initiated when the interim injunction is in operation.

(18) A constitution Bench of the Honble Supreme Court in The State of Bihar v. Rani Sona Bati Kumari, AIR 1961 SC 221 [LQ/SC/1960/212] , observed that the purpose of such proceedings is for the enforcement or effectuation of an order of execution. Similarly, in Sitarami v. Ganesh Das, AIR 1973 All 449 [LQ/AllHC/1973/12] , the Court held as under :- "The purpose of Order 39, Rule 2A, Civil P.C. is to enforce the order of injunction. It is a provision which permits the Court to execute the injunction order. Its provisions are similar to the provisions of Order 21, Rule 32, Civil P.C. which provide for the execution of a decree for injunction. The mode of execution given in Order 21, Rule 32 is the same as provided in Rule 2A of Order 39. In either case for the execution of the order or decree of injunction attachment of property is to be made and the person who is to be compelled to obey the injunction can be detained in civil prison. The purpose is not to punish the man but to see that the decree or order is obeyed and the wrong done by disobedience of the order is remedied and the status quo ante is brought into effect. This view finds support from the observations of the Supreme Court in the case of State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221 [LQ/SC/1960/212] ; while dealing with O. 39, Rule 2(iii), Civil P.C. (without the U.P. Amendment) the Court held that the proceedings are in substance designed to effect enforcement of or to execute the order, and a parallel was drawn between the provisions of O. 21, R. 32 and of O. 39, R. 2(iii), C.P.C. which is similar to Order 39, R. 2A. This curative function and purpose of Rule 2A of Order 39, Civil P.C. is also evident from the provision in Rule 2-A for the lifting of imprisonment, which normally would be when the order has been complied with and the coercion of imprisonment no longer remains necessary. Hence, even if Sitaram had earlier been sent to the civil imprisonment he would have been released on the tinshed being removed, and it would therefore, now serve no purpose to send him to prison. For the same reason the attachment of property is also no longer needed. The order of the Court below has lost its utility and need no longer be kept alive."

(19) In Kochira Krishan v. Joseph Desouza, AIR 1986 Kerala 63, it was been held that violation of injunction or even undertaking given before the Court is punishable under O. 39, R. 2A of the Code. The punishment can be imposed even if the matter stood disposed of, for the reason that the Court is concerned only with the question whether there was a disobedience of the order of injunction or violation of an undertaking given before the Court and not with the ultimate decision in the matter. While deciding the said case, the Court placed reliance upon the judgment of the Privy Council in Eastern Trust Co. v. Makenzie Mann and Co. Ltd., AIR 1915 PC 106 (2), wherein it had been observed as under :- "An injunction, although subsequently discharged because the plaintiffs case failed, must be obeyed while it lasts ........."

(20) Thus, it is evident from the above discussion that the proceedings are analogous to the proceedings under the Act, 1972. The only distinction is that as the Legislature, in its wisdom, has enacted a special provision enacting the provisions of O. 39, R. 2A, it would prevail over the provisions of the Contempt of Courts Act. Though the High Court, by virtue of the provisions of Section 10 of the Act, 1972 can initiate the contempt proceeding even for disobedience of the injunction order granted by the Civil Court, but the exercise of such power is discretionary and generally does not require to be exercised in view of the special power conferred upon the Civil Court itself as held by the Division Bench of the Delhi High Court in Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur, 1983 Cri LJ 495.

(21) In Andre Paul Terence Ambard v. Attorney General for Trinidad and Tabago, AIR 1936 PC 141, the Privy Council has observed that the proceedings under the Contempt of Courts Act are quasi judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. In Sukhdeo Singh v. Honble the Chief Justice Teja Singh and Honble Justice the Par Pepsu High Court at Patiala, AIR 1954 SC 186 [LQ/SC/1953/107] , the Supreme Court has taken the same view.

(22) A Full Bench of Punjab and Haryana High Court, in Sher Singh v. R.P. Kapoor, AIR 1968 Punj 217, has held that the contempt proceedings, are, by all means, a quasi criminal in nature. The applicant must prove his allegations beyond reasonable doubt and the alleged contemnors are entitled to the benefit of doubt. The same view has been taken by the Division Bench of Madras High Court in B. Yegnaryaniah, AIR 1974 Madras 313; and by the Lahore High Court, in Homi Rustom G. Pardiawala v. Sub Inspector Baig, AIR 1994 Lahore 196.

(23) In S. Abdul Karim v. M.K. Prakash, AIR 1976 SC 859 [LQ/SC/1976/31] , the Honble Apex Court has held that the standard of proof required to establish a charge in contempt proceedings is the same as in any other criminal proceedings. It is all the more necessary to insist upon strict proof of such charged act complained of is committed by a person performing judicial/quasi judicial proceedings.

(24) In Jawand Singh Hukum Singh v. Om Prakash, AIR 1959 Punjab 632, the Punjab and Haryana High Court, while dealing with a contempt matter, had observed that guilt of a person of having committed contempt of Court, must rest on reasonable certainly. Suspicion, no matter how strong and speculative, however, suspicions must not form the basis for contempt.

(25) In Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530 [LQ/SC/2001/1836] : (AIR 2001 SC 3468 [LQ/SC/2001/1836] ), the Honble Supreme Court held that burden and standard of proof in contempt proceeding, being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature.

(26) In view of the above discussion, one reaches the inescapable conclusion that proceedings under O. 39, Rule 2A are quasi criminal in nature and are meant to maintain the dignity of the Court in the eyes of the people so that the supremacy of law may prevail and to deter the people for mustering the courage to disobey the interim injunction passed by the Court.

(27) To sum up the case, the sale deeds allegedly executed by the respondent No. 3 in favour of respondent Nos. 4 to 6 are nullity as had been executed in disobedience of the interim order passed by the trial Court on 18-8-1992. Secondly, respondent Nos. 4 to 6 could not be in possession of the land as there has been no partition by metes and bounds between co-sharers. If they are in possession, it is to be ignored, and thirdly, as the alleged sale deeds have to be ignored, the learned Court below ought to have attached the entire property which, including the land sold vide two sale deeds.

(28) Petition succeeds and is allowed. Learned trial Court is directed to attach the entire land in dispute and force the respondent No.3 to comply with the order passed by the Court on 18-8-1992 and further to conclude the trial of the suit expeditiously.

(29) In the facts and circumstances of the case, the respondent Nos. 4 to 6 shall pay a sum of Rs. 5,000.00 as a cost to the petitioner. Petition allowed.