Judgment:
ORDER
G. Radhakrishna Rao, J.
1. The appellant herein is the plaintiff in O.S. No. 263 of 1987. He filed the suit against the defendant for recovery of money. Along with the suit he also filed an interlocutory application under Order 38, Rules 1 and 5 of C.P.C., for attachment of properties of the defendant. Further, he filed another interlocutory application for appointing an Advocate-Commissioner for making inventory of the movable property. An Advocate-Commissioner was appointed and he made an inventory and filed his report. While so, the plaintiff filed I.A. No. 355 of 1991 under Order 39, Rule 2-A of the C.P.C. to commit the defendant to civil prison complaining that the defendant had disobeyed the temporary injunction order granted on 25-9-1987. The said application was dismissed. Against this order of dismissal the present appeal is filed by the appellant-plaintiff.
2. Temporary injunction was granted on 25-9-1987 restraining the defendant from alienating the movable articles. The plaintiff filed an application for appointment of Advocate-Commissioner for again making inventory. The Advocate-Commissioner did not find some of the articles mentioned in the first inventory list. Basing on the report of the Advocate-Commissioner the petitioner filed the application under Order 39, Rule 2-A of the C.P.C. on the ground that the defendant violated the injunction order.
3. The temporary injunction order shows that it was to have effect from the date of passing of that order to the date of disposing of the application filed under Order 38, Rules 1 and 5 of the C.P.C. for attachment for the property of the defendant. The application for attachment was disposed of on 12-11-1987 recording an undertaking by the defendant not to alienate the property. The lower Court observed that the plaintiff-petitioner had alleged that there was violation of the temporary injunction order but did not allege any violation of the undertaking and further observed that the application under Order 39 was filed along after the expiry of the temporary injunction order. On that ground the lower Court dismissed the application under Order 39 of the C.P.C.
4. The lower Court has disposed of the application for attachment taking into account the undertaking given by the defendant not to alienate the property listed by the Advocate-Commissioner in his inventory report. Therefore, the natural inference that has to be drawn is that the Court while disposing of the application for attachment recording an undertaking intended that the defendant should not alienate the property. It is for that reason the temporary injunction order was granted till a particular date. An undertaking given to the Court must mean that it is a relief granted by the Court and it indirectly tantamounts to a condition in the injunction order. It is true that the injunction order was given till 12-11-1987 on which date the application for attachment was disposed of. But, while passing an order disposing of the application for attachment the Court recorded an undertaking by the defendant. Recording of the undertaking is a continuation of the steps taken by the Court to ensure that the defendant shall not alienate the property. If such an undertaking has been violated, as is found by the second Advocate-Commissioner in his report, certainly it is a fit case where the plaintiff can move the application under Order 39, Rule 2-A of the C.P.C. The flouting of any order which touches the effect and consequence of the order of injunction will touch the jurisdiction of the Court for application under Order 39 Rule 2-A of the C.P.C. When one party allows the Court to pass an order and commits mischief depriving realisation of the fruits of decree by the other party, the Court is competent to entertain an application under Order 39, Rule 2-A of the C.P.C. In the present case the petitioner-plaintiff specifically contended violation of the injunction order only but did not contend violation of the undertaking. In the circumstances of the case, we hold that it is open to the petitioner-plaintiff to agitate the matter with reference to the violation of the undertaking also in the competent Court and the lower Court is bound to entertain the same. If it is found that there is violation of the undertaking certainly the person who has done so must take the consequences.
5. At this stage the learned Counsel for the respondent-defendant con tended that such an application is not maintainable. The reasoning given above by us is sufficient answer for the objection raised by the learned Counsel for the respondent-defendant.
6. The C.M.A. is accordingly disposed of. No costs.