13. Feeling aggrieved, FCI filed an appeal (FAFO No. 343/2005) before the Allahabad High Court. The High Court dismissed the appeal by a brief order dated 6.3.2006, without prejudice to the rights of FCI to challenge the order of injunction, with an observation that it was not competent to consider the validity of the `injunction order' in an appeal against an order passed under order 39 Rule 2A of the Code, for disobedience of the `injunction order'. The High Court assumed that in the appeal against the order dated 15.12.2004 passed under Order 39 Rule 2A, FCI was trying to challenge the validity of the `injunction order' dated 27.5.1996.
21. At all events, if a garnishee, or a defendant, who is directed to pay any sum of money, does not pay the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under order 39 Rule 2A. This is evident from Rule 46B of Order 21 read with Rule 11A of Order 38 of the Code. Contempt jurisdiction, either under the Contempt of Court Act, 1971, or under Order 39 Rule 2A of the Code, is not intended to be used for enforcement of money decrees or directions/orders for payment of money. The process and concept of execution is different from process and concept of action for disobedience/contempt. Re : Question (iii)
24…The power exercised by a court under order 39 Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971.
26. It is unfortunate that the High Court has failed to even refer to these aspects and has dismissed the appeal on a wholly baseless and erroneous assumption that the appellant was trying to challenge only the order dated 27.5.1996, in the appeal against the order dated 15.12.2004. We feel dismayed that when a huge liability of Rs.1,12,24,792.99 was sought to be created on the FCI in a proceedings under Order 39 Rule 2A, the High Court did not even bother to refer to the facts and merits, and chose to summarily dispose of the appeal thereby allowing perpetration of a patent abuse of process of court by the respondent. The travails of the FCI could have been avoided if the trial court and the High Court had been diligent to ensure that its process were not misused and abused by the respondent.
27. We therefore allow this appeal with costs of Rs.25,000/- payable by respondent, set aside the order of the High Court and the trial court and dismiss the application filed by the respondent under Order 39 Rule 2A of the Code.
Supreme Court of India
Food Corporation Of India vs Sukh Prasad on 24 March, 2009
Bench: R.V. Raveendran, Markandey Katju