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Pushpa Rani (New Lawyer)     27 December 2008

Stay order and property sell?

Mutation of a inherited property is on my name but a nasty relative thinks it is a disputed property. So he filed declaration suit and permanent injunction and took the stay orders. I am tired of slow court hearings and it seems never ending. I am in debt and I can’t pay my debt without selling the property. Can somebody kindly tell me what kind of penalty I might face if I sell this property?



Learning

 14 Replies

Ajay kumar singh (Advocate)     28 December 2008

Please see the provisions of Order 39 Rules 2 and 2-A of the C.P.C.

Vijay Raj Mahajan (Advocate)     28 December 2008

Rather then selling the property in dispute & facing your property being attached or you in person may face civil imprisionment under Order 39 Rule 2A C.P.C, you should move application under Order 39 Rule 4 C.P.C for setting aside the order for injunction as there are change of circumstances which have  caused undue hardship to you due to unneccesary delay in the civil proceedings falsely initiated by the other party/respondent.

AEJAZ AHMED (Legal Consultant/Lawyer)     28 December 2008

Mr. Ajit Singh,


If you sell the Property against which there is a Stay Order:  " You will be detained in the civil prison for a term not exceeding Three (3) Months, unless in the meantime the Court directs his release" as per Rule 2-A of Order 39 Civil procedure Code.


ORDER XXXIX

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS




Temporary injunctions




1. Cases in which temporary injunction may be granted




1Where in any suit it is proved by affidavit or otherwise-



(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or



(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 2[defrauding] his creditors,



3[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]



the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 3[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.



4[* * *]



1. Amendment of Order XXXIX Rule I made by Act No. 46 of 1999, section 30 has been repealed by Act No. 22 of 2002, section 16 (w.e.f. 1-7-2002).



2. Subs, by Act No. 104 of 1976, for "defraud" (w.e.f. 1-2-1977).



3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).



4. Sub-rule (2) ins. by Act 46 of 1999, sec. 30 and section 30 of the Act 46 of 1999, by which it was so inserted, has been omitted by Act 22 of 2002, sec. 16 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS




Andhra Pradesh.-For Order XXXIX, for rule 1, substitute the following rule, namely:-



"1. Where in any suit it is proved by affidavit or otherwise-



(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or



(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors; or



(c) that the defendant threatens to dispossess the plaintiff, or otherwise cause injury or loss to the plaintiff,



the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting damaging alienation sale, removal or disposition of the property, or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders." (w.e.f. 26-7-1956).



Calcutta.-In Order XXXIX,-



(a) renumber rule 1 as sub-rule (1) thereof; and



(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-



"(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order 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 person for a term not exceeding six months, unless in the meantime the Court directs his release. (3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold and, out of the proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto." (w.e.f. 3-2-1933)



Gauhati.-Same as in Calcutta.



Kerala.-Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof;



(b) in sub-rule (1) as so renumbered, in clause (a), after the words "wrongfully sold", insert the words "or delivered";



(c) after sub-rule (1) as so renumbered, inset the following sub-rule, namely:-



"(2) In case of disobedience of any order passed under sub-rule (1) the Court granting injunction may proceed against the person guilty of such disobedience under sub-rules (3) and (4) of rule 2 of this Order." (w.e.f. 9-6-1959)



Orissa.-Same as in Pama.



Patna.-In Order XXXIX, in rule 1, at the end, insert the following provisos, namely:- "Provided that no such temporary injunction shall be granted if it would contravene the provisions of section 56 of the Specific Relief Act (Act 1 of 1877): Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the Court executing the decree."



2. Injunction to restrain repetition or continuance of breach



(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.



(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.



1[* * * ]



1. Sub-rules (3) and (4) omitted by Act No. 104 of 1976, sec. 86 (w.e.f, 1-2-1977).


STATE AMENDMENTS




Madhya Pradesh.-In Order 39, rule 2, in sub-rule (2), insert the following proviso:-




"Provided that no such injunction shall be granted-



(a) where no perpetual injunction could be granted in view of the provisions of section 38



(b) to stay, the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismmissal, removable or otherwise termination of service of, or taking charge from, any person appointed to public service and post in connection with the affairs of the State including any employee of any company or Corporation owned or controlled by the State Government; or



(c) to stay, any disciplinary proceeding, pending or intended or, the effect of any adverse entry against any, person appointed to public service and post in connection with the affairs of the State including any employee of the company owned or controlled by the State Government; or



(d) to restrain any election; or



(e) to restrain any auction intended to be made or, to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished; and any order for injuction granted in contraven- tion of these provisions shall be void." [M.P. Act 29 of 1984].




Uttar Pradesh.-In rule 2, sub-rule (2), interest the following proviso:- "Provided that no such injunction shall be granted-




(a) where no perpetual injunction could be granted in view of the provisions of section 38 and section41 of the Specific Relief Act, 1963 (47 of 1963), or



(b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or



(c) to stay any disciplinary proceeding pending or intended, or, the effect of any adverse entry, against any employee of the Government, or



(d) to affect the internal management or affairs of any educational institution including a University, or a Society, or



(e) to restrain any election, or



(f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government unless adequate security is furnished, or



(g) to stay the proceedings of the recovery of any dues recoverable as land revenue unless adequate security is furnished, or



(h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being inforce;



and any order for injunction granted in contravention of these provisions shall be void".



[U.P. Act 57 of 1976 amended by Notification dated 3.10.1981 ].




1[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 rule 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 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 one 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.]



1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).




HIGH COURT AMENDMENT




Patna.-In Order XXXIX, in rule 2A, in sub-rule (1), after the words and figure "rule 2" and before the words "or breach of", insert the words and figures "or section 151".



[Vide Notification No. 243/R, dated 3rd August, 1979.]


 


 

GOPAL SINGH SAINI (ADVOCATE)     28 December 2008

Reply regarding your question given by Sir AejazAhmed is correct.

PALNITKAR V.V. (Lawyer)     28 December 2008

what is the stay order? If there is no stay on sell, you may not be liable under order 39 rule 2A.

ashok kumar (advocate)     29 December 2008

plz write down the language of stay order for correct suggestion.


ashok kumar dwivedy advocate

Ravi Arora (Advocate)     29 December 2008

very well said  Mr.Aejaz Ahamed


(Guest)

Mr.Aejaz Ahamed very well said and your are well informed, I am very glad to have as my friend


 


 

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     31 December 2008

Yes, Md. Ahamed is very right. Really appreciating as it is a good work.

Pankaj Rai (Lawyer)     08 January 2009

I think after the reply of MR. Aezaz Ahmad there is no need to say any more.

DALILUR RAHMAN (ADVOCATE)     07 August 2011

During the period of operation of the Stay order that means the Appellate Court might have stayed the opeartion of the Injunction order granted by the lower Trial Court . But as being a Lawyer we must co-opearte the orders of the honourable Courts either it may be the trial Court or the Appellate Court . Stay order may be passed only in appellate jurisdiction U/Order 41 ( Appeal from Decree) & Order 43 r.(r) Appeal from orders) . Hence in your case what you mean about the Stay order may be passed U/O 43.r.(r) of the CPC. .

                    Be that is it may , Hearing must be taken place in appellate Court till than please wait . But if you obtained Stay order against the Injunction order you may take the permission from Court to sell but U/S 52 of T.P.Act Principle of  Lis pendens may also be complied with . So please wait for the final hearing .

 

DALILUR RAHMAN ,

ADVOCATE , SONARI , DIST SIVASAGAR . ASSAM  

ashok kumar (advocate)     07 August 2011

plz say the words of stay order to suggest you best although our friends guided you the best  

sandesh (production)     18 March 2012

hi sir 

my land in sindhudurg (malwan )

so can i sell my that stay order land 

Amit Gupta (Advocate)     18 March 2012

Apart from all the legal provision u can still transfer the property. if u tap down of cash then find a buyer and enter into a agreement to sale the property on a simple paper in back date...tell him to file a civil suit and enter into a compromise in the suit.

in that way the property will be sold and no criminal liability will com on u...


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