IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.12.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE VINOD K.SHARMA O.S.A.No.380 of 2010 Green Peace Constructions Pvt. Ltd., Rep. By its Managing Director, P.R.Earnarst. .. Appellant Vs 1. R.Shivakumar 2. G.Nalini 3. The Manager Bank of Baroda, Ramapuram Branch, No.1 & 2, Giri Nagar, Ramapuram, Chennai. .. Respondents Appeal against the fair and executable order of attachment dated 21.09.2010 made in Application No.4239 of 2010 on the file of this Court. For Appellant : Mr.A.L.Somayaji, S.C. For M/s.S.Muthuraman For Respondents : Mr.T.V.Ramanujam, S.C. For M/s.C.Umashankar/R-1 (Caveator) J U D G M E N T D.MURUGESAN, J. The appellant is the third respondent in Application No.4239 of 2010 in C.S.No.126 of 2010 filed by the first respondent/plaintiff to punish the appellant herein for disobeying the order of this Court. 2.The appeal arises under the following circumstances. The first respondent herein filed the above said suit for a declaration declaring that he is the absolute owner of the schedule property and for a further declaration declaring that the business namely AUTOLINKS, a manufacturing unit of Auto components, absolutely https://hcservices.ecourts.gov.in/hcservices/ belongs to the first respondent/plaintiff and consequently, injunct the first defendant/second respondent, namely, G.Nalini, from interfering or dealing with the assets and functioning of the said concern. Pending the suit, he also filed two applications, viz., Application No.146 of 2010 and Application No.147 of 2010. Application No.146 of 2010 was filed for an ad-interim injunction restraining the appellant and respondents 2 and 3 herein, their men, agents, servants or anyone acting on their behalf from in any way sell or alienate, encumber or deal with the schedule property. Application No.147 of 2010 was for an order of interim injunction restraining the second respondent, her men, agents, servants or anyone acting on their behalf from in any way interfering with the affairs of the business namely AUTOLINKS. Both these applications were ordered on 11.02.2010. The appellant, who was the third respondent in the above applications, filed Application No.5170 of 2010 seeking for vacating the interim injunction granted in favour of the first respondent/plaintiff. While that application was pending, the first respondent/plaintiff filed Application No.4239 of 2010 to punish the appellant herein for disobeying the order of injunction by imposing attachment of the property and also detaining him in civil prison. 3.By order dated 29.07.2010, the learned Judge directed as follows:- " That the immovable property morefully set out in the schedule hereunder, belonging to the 3rd respondent herein, shall stand attached and the same do remain under attachment until further orders of this court. 2.That 2 copies of this order to be transmitted to the City Civil Court, Madras for effecting the attachment, and the said court do cause the said immovable property to be attached, and communicate the effect of such attachment within the Sub-Registrar District of Virugambakkam and Registration District of South, Chennai within the local limits of whose jurisdiction the whole or any part of the immovable property is situated. 3.That the Registry be and is hereby directed to post the matter before the Master for recording evidence. 4.That the Recording of evidence shall be completed on or before 05.10.2010 and thereafter the matter shall be posted before this court." 4.The above order is questioned in this appeal on the ground that though the order of injunction further directed the first respondent/plaintiff to comply with Order 39 Rule 3 CPC, which is mandatory, the same has not been complied with and therefore, the https://hcservices.ecourts.gov.in/hcservices/ first respondent/plaintiff cannot maintain an application seeking for punishment on the ground that the injunction order had been disobeyed. Hence, the learned Judge ought not to have entertained the application for punishing the appellant. He would also submit that in any case, the learned Judge ought not to have ordered attachment of the property, as by virtue of that order, the right of other flat owners is deprived and further, the construction of a new superstructure for other flat owners is stalled. Learned senior counsel would furhter submit that when a petition seeking for vacation of interim injunction was pending, the learned Judge ought to have first disposed of that application rather entertaining an application for contempt. Hence, on the above grounds, the order is liable to be set aside. 5.The appeal is opposed on the grounds that the appeal is not maintainable, as by the order under appeal, the learned Judge has only directed the attachment as an interim measure and has also directed evidence to be recorded for consideration by the Court for passing further orders in the application. That order has not reached its finality and it is also a revocable order. In that sense, that order cannot be brought under the term "Judgment" as required under Clause 15 of the Letters Patent. Further, Order 39 Rules 3 and 4 of CPC had been complied with. It is further contended that though the petition for vacating the injunction order was pending, the same cannot stand in the way of the Court to consider as to whether the interim order of injunction was disobeyed or not. 6.On the above factual backgrounds and the respective claims, we have heard Mr.A.L.Somayaji, learned senior counsel appearing for the appellant and Mr.T.V.Ramanujam, learned senior counsel appearing for the first respondent/Caveator. 7.Clause 15 of the Letters Patent reads as follows:- "15. Appeal from the Courts of original jurisdiction to the High Court in its appeallte jurisdiction. - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of a revisional jurisdiction, and not being asentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sectin 108 of the Government of India Act, and that notwithstanding https://hcservices.ecourts.gov.in/hcservices/ anything herein-before provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made (on or after the first day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided." 8.The scope, meaning and purport of the word "judgment" in clause 15 of the Letters Patent came up for consideration before the Apex Court in the judgment reported in A.I.R. 1981 SC 1786 (Shah Babulal Khimji v. Jayaben D.Kania and another). The Apex Court, after analysing the view of different High Courts and the said Clause, ultimately observed as follows:- "The intention, therefore, of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense." It was pointed out that 'judgment' could be of three kinds: (1) A final judgment - in this category falls a judgment by which suit or action brought by the plaintiff is dismissed or decreed in part or full; (2) A preliminary judgment. - this category is sub-divided into two classes: (a) where the trial Judge by an order dismisses the suit, without going into the merits of the suit, only on a preliminary objection raised by the defendant/ respondent on the ground of maintainability; (b) where maintainability of the suit is objected on the ground of bar of jurisdiction, e.g., res judicate, a manifest defect in the suit, absence of notice under Section 80 and the like; and https://hcservices.ecourts.gov.in/hcservices/ (3) Intermediary or interlocutory judgment. - in this category fall orders referred to in clauses (a) to (w) of Order 43 Rule 1 and also such other orders which possess the characteristic and trappings of finality and may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Elucidating the third category, it is observed: "Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned." By the above judgment of the Apex Court, even an intermediary or an interlocutory judgment, which possess the characteristic and trappings of finality and may adversely affect the valuable right of a party or decide an important aspect of the trial in an ancillary proceeding could be brought under the meaning and purport of 'judgment' under Clause 15 of the Letters Patent. It was also observed that such interlocutory orders could be judgments which decide the matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the parties. 9.The above judgment was quoted with approval by the Supreme Court in the judgment reported in Employer in Relation to Management of Central Mine Planning and Design Institute Ltd. vs. Union of India and Another, AIR 2001 SC 883. That case arose under Clause 10 of the Letters Patent of Patna, which is similar to Clause 15 of Letters Patent applicable to this Court. That was a case where the entitlement of workmen to receive benefits and the obligation of the employer to pay such benefits was considered. The High Court declined to entertain the appeal filed by the employer under Clause 10 of the Letters Patent of Patna. The Apex Court negatived the view of the High Court and held that an order obligating the employer to pay the benefits to the workmen would amount to judgment. 10.Applying the above law declared by the Apex Court, the facts of the present case are to be considered. On the ground that ad interim injunction was granted in favour of the first respondent/plaintiff and the same has been violated by the appellant herein, as the appellant had sold the plots in violation of the interim order, the application for punishing the appellant was filed. The learned Judge, while considering the application, had passed an order of attachment of the properties of the appellant. This order of attachment, in our opinion, is in tune with the earlier order of ad-interim injunction restraining the appellant from in any way selling or alienating, encumbering or dealing with the property. The grievance of the first respondent is that in utter violation of that https://hcservices.ecourts.gov.in/hcservices/ order, the appellant had sold seven plots. In that view of the matter, the learned Judge would be well within the right to order attachment by way of interim arrangement as by that order the learned Judge had specifically directed the evidence to be recorded in the contempt petition on or before 05.10.2010 and the matter be posted before the Court after the evidence was over. 11.A careful reading of the order under appeal would show that the order of attachment is only by way of interim arrangement, which had not reached finality. That order is also revocable in the event the Court negatives the contention of the first respondent/plaintiff, after perusing the evidence. As the lower Court had already granted injunction in favour of the first respondent/plaintiff, the order of attachmnt cannot be considered to be one of affecting vital and valuable rights of the appellant finally. In that view of the matter, the appeal under Clause 15 of the Letters Patent is not maintainable. 12. As we found that the appeal itself is not maintainble, we are not inclined to go into the other questions raised and argued on merits. 13. Accordingly, the Original Side Appeal is dismissed. No costs. Consequently, M.P.No.1 of 2010 is also dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar sra To The Sub-Assistant Registrar (O.S.), High Court, Madras. 1 cc to M/s.C.Uma Shankar, Advocate, Sr.No.86374 1 cc to Mr.N.K.Sriraman, Advocate, Sr.No.87336 Judgment in O.S.A.No.380 of 2010 KM {CO} TP/16.12.2010. https://hcservices.ecourts.gov.in/hcservices/