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Judgment
Rekha Mittal, J.—The present petition has been directed against order dated 13.08.2015 (Annexure-P.5) passed by the Additional District Judge, Rewari, whereby the execution petition has been held to be not maintainable.
Counsel for the petitioner contends that though the application was filed in the format meant for filing an application for execution but in sum and substance, the petitioner sought to initiate action against the respondent for violating the interim injunction granted by the Court. It is further submitted that as the application, in essence, is a petition for committing contempt of the Court, the Court should have proceeded with the application by treating it as an application under Order 39, Rule 2A of the Code of Civil Procedure (for short "CPC").
I have heard counsel for the petitioner, perused the records particularly the order impugned.
Perusal of application preferred by the petitioner dated 23.12.2011 (Annexure P-3) would make it evident that the petitioner filed an application for execution of order dated 15.11.2011 passed by the Court granting ad interim injunction in favour of the petitioner. Against Serial No. 7 of the application dealing with mode in which the assistance of the Court is required, it is mentioned to be by way of attachment, auction, sale of properties and other goods of the respondent. The mere fact that in the concluding para of the application, it is mentioned that the respondent be also sent behind the bars for contempt of the Court''s order dated 15.11.2011, is not sufficient to say that the petitioner filed an application under Order 39, Rule 2A CPC. The learned Court below while disposing of the application has rightly held in the following terms:-
"Order 39, Rule 2A CPC provides for the consequences of disobedience or breach of injunction granted or Order made under Rule 1 or Rule 2 Order 39 CPC. No Petition under Order 39, Rule 2A CPC has been moved by the applicant. In case the respondent has disobeyed or committed breach of the stay Order passed under Order 39 Rules 1 and 2 CPC, an action would have been maintainable under Order 39, Rule 2A CPC. Reference in this regard may be made to the ruling Patel Rajnikant Dhulabhai and another v. Patel Chandrakant Dhulabhai and others, 2008 (3) CCC 785 (SC). The present Execution Petition is thus held to be not maintainable and is hereby dismissed."
Keeping in view the manner and tenor of the application for execution, I find myself unable to accept submission of counsel for the petitioner that the court below may be directed to treat execution application as an application under Order 39, Rule 2A CPC.
With these observations, the petition stands disposed of without prejudice to rights of the petitioner to file an appropriate application Order 39, Rule 2A CPC for alleged violation of interim order of stay.