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(Guest)

Execution of Order

S.36 of CPC reads, "The provisions of this Code relating to the execution of decrees shall so far as they are aplicable be deemed to apply to the execution of orders.

O.39 R 2A reads, "In the case of disobedience of order made under rule 1 or 2, the court making the order, may order the property of the person guilty of disobedience or breach to be attached and may also order such person to be detained in the civil person".

In view of S.36 is it not permissable for Executing Court to exercise powers under O.39 R2A?

Is the view correct,  that the effect of O.39 R2A amounts to arrest and attachment before judgment and therefore executing court cannot exercise powers u/s 36?

In such cases is it necessary for the litigant to file an application under O.38 R1 or R5 for obtaining relief under O 39 R 2A?



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 2 Replies

Suryanarayana Tangirala (Advocate)     19 April 2010

Mr. Anil,S.36 speaks about applicabity to both decrees and orders

0.39,R2A speaks about contempt proceeding for violating orders passed u/o.39,Rr 1 & 2. ABJ cannot be enforced by invoking O.39,R.2A.civil arrest is the punishment for violation of Injunctions and not ABJ,one cannot mix up both.


(Guest)

O.39 R 2A does not speak about contempt proceedings.  It speaks about

1. property of the person guilty of such breach to be attached &

2. Detaining of such person in the civil prison

Question is not ABJ being enforced by invoking O.39 R2A.

Question is whether invoking O.39 R2A amounts to ABJ and therefore whether an application under O.38 to be made? If that is so then S.36 cannot be invoked to orders to cases to which O.39 R2A though s.36 says it is applicable to orders also.  I am seeking clarification on this point.


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