Sale of property after stay
Querist :
Anonymous
(Querist) 04 March 2020
This query is : Resolved
Dear Sir,
I had filed a suit for specific performance of house property due to denial by party to get deed registered in my favour, during the pendancy of case they transferred the property in favour of third party. But lower court decreed in my favour and cancelled the sale deed made in favour of third party.
Then they filed appeal in session court and won there.
After that I filed the RSA in P&H High Court,where court granted stay.
But even after granting stay that third party which is also a party in case transferred the property in favour of fourth party without intimating high court.
Is this contempt of court. And what steps we should take now.
Guest
(Expert) 04 March 2020
Any transaction during a Suit Pending will not affect the Judgement Orders
Guest
(Expert) 04 March 2020
Transaction during a Court Stay is contempt of Court and you should inform this to Court and Court would decide
Guest
(Expert) 04 March 2020
Refer the term " Lis Pendens "
Querist :
Anonymous
(Querist) 04 March 2020
Thanks sir for your reply.
Generally what actions are taken by courts in this type of cases.
Raj Kumar Makkad
(Expert) 04 March 2020
If you file CM in the said RSA then High Court of Punjab & Haryana shall issue notice to fourth party even and shall grant further stay order.
Raj Kumar Makkad
(Expert) 04 March 2020
In response to contempt of court proceedings, not only the sale-deed executed and registered during the pendancy of the stay order but may also penalize such party as per law.
Raj Kumar Makkad
(Expert) 04 March 2020
This violation of interim order by third party shall definitely strengthen your case.
Guest
(Expert) 05 March 2020
Dear Querist We should not rely on any assumptions or prediction with regards to Court's decision as done by an idiot here. ( Idiot meaning lack of intelligence-- lack of knowledge - obviously to makkar /makkad please )
Guest
(Expert) 05 March 2020
" Judicial Discretion " is an absolute Powers of the concerned Judge to decide a legal case with in a range of possible decisions
Guest
(Expert) 05 March 2020
Bhagavat Gita -- Do your duty , but do not concern your self with the results
Guest
(Expert) 05 March 2020
Do your duty Perfectly and God will not let you down
Guest
(Expert) 05 March 2020
But avoid predictors and predictions. (like makkar/makkad please )
KISHAN DUTT KALASKAR
(Expert) 05 March 2020
Dear Sir,
Yes, it is contempt of Court and you have to move such application and also take shelter Section 53A of TP Act which is as follows:
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Section 53A in The Transfer of Property Act, 1882
1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]
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Raj Kumar Makkad
(Expert) 05 March 2020
Order 39 Rule 2A of the CPC reads as follows:
"2A:-.Consequence of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other Order made under rule 1 or 2 or breach of any of the terms on which the injunction was granted or the Order made, the court granting the injunction or making the order, or any court to which the Suit or proceeding is transferred, 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 the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.
(2) No attachment made under this rule shall remain in force for more than tone year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
Raj Kumar Makkad
(Expert) 05 March 2020
So far as the scope of Order XXXIX, Rule 2A is concerned, the same has been considered by different Courts from time to time. The said provisions are of a different nature altogether. A Constitution Bench of the Supreme Court, in State of Bihar v. Rani Sana Bati Kumari, AIR 1961 SC 221, 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 municipality/Government can be punished though no officer of it be a party by name. A similar view has been reiterated by the Supreme Court in Aligarh Municipal Board and Ors. v. Ekka Tonga Mazdoor Union and Ors., AIR 1970 SC 1767.
Raj Kumar Makkad
(Expert) 05 March 2020
In Tayabbhai M. Bagasarwalla and Ors. v. Hind Rubber Industries Put. Ltd., AIR 1997 SC 1240, the Supreme Court dealt with a case of disobedience of an injunction passed under Order XXXIX, Rules 1 and 2 of the Code, wherein the contention was raised that the proceedings under Order XXXIX, Rule 2A cannot 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 to 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 consequence of punishment.
Raj Kumar Makkad
(Expert) 05 March 2020
In Samee Khan v. Bindu Khan, reported in AIR 1998 SC 2765, the Supreme Court held that in exercise of the power under Order XXXIX, Rule 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 :
"But the position under Rule 2A or Order XXXIX 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 disobedience ceases to continue in the meanwhile the attachment also would cease. Thus, even under Order XXXIX, Rule 2A 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 obedience."
Raj Kumar Makkad
(Expert) 05 March 2020
It is crystal clear that the proceedings are analogous to the contempt of court proceedings but they are taken under the provisions of Order XXXIX, Rule 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.
T. Kalaiselvan, Advocate
(Expert) 21 March 2020
If the third party was notified with the court order about the stay granted for any such further alienation, despite receiving the notice by the concerned party and has acted arrogantly disobeying the court order, then it can be considered as contempt of court.
At the cost of repetition, I would like to endorse the views expressed by learned experts above with regard to the provisions of contempt of court and the procedure to be followed in furtherance to initiate action under contempt laws. agaisnt the contemnor, you may discuss with your advocate and proceed in the right direction immediately to avoid further damages in this regard.
