IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 FAO.No. 118 of 2010() --------------------- I.A.NO.4974 OF 2008 IN OS.160/2006 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT:(RESPONDENT/DEFENDANT IN THE TRIAL COURT): ------------------------------------------------------------------------------------------------ DAMSON, S/O.KUMARAN, AGED 48 YEARS, THURUTHIPPILLY HOUSE, MARADU PO,ERNAKULAM BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): (PETITIONER/PLAINTIFF IN THE TRIAL COURT): -------------------------------------------------------------------------------------------------- PRADEEP K.GEORGE, S/O.GEORGE, CARPENTER, KANDAYIKODATH HOUSE, KALOOR DESOM, KALOOR PO, PIN 682 017, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 06/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.118 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of September, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.We have disposed of RFA.731/2008 today. That appeal was against the decree dated 25.2.2008. The suit was one for specific performance of a contract for sale. The court below had decreed the suit. We have affirmed it. 2.After the court below had passed the aforesaid decree on 25.2.2008, it considered I.A.4974/2008 and passed the order impugned in this appeal on 18.11.2009. That was an application under Order XXXIX Rule 2A of the Code of Civil Procedure filed by the plaintiff-vendee seeking prosecution of the defendant-vendor on ground that he had violated an undertaking given to the court below FAO118/10 -: 2 :- on I.A.1417/2006. 3.It is not in dispute that the defendant-vendor had undertaken before the court below on I.A.1417/2006 that he would not alienate the property. Admittedly, during the pendency of the suit, the vendor had executed a registered sale deed of the property in question in favour of one Anil Kumar. That is also an admitted fact. Though he took the stand that the said undertaking was valid only for one month, the said plea does not stand for two reasons. Firstly, the court below had extended the validity of the undertaking given by the defendant. It is the admitted situation that the said undertaking was made absolute by an order of the court below. Secondly, and more importantly, when a party makes an undertaking to a court in a pending proceedings, he cannot treat for himself that the undertaking stands withdrawn. He has necessarily to seek leave of the court for being permitted to act contrary to the undertaking since the courts FAO118/10 -: 3 :- are empowered to continue to take it that the undertaking remains valid unless vacated or the party who undertakes is granted leave to resile out of his obligations under the undertaking. 4.In the light of the aforesaid, the finding of the court below that the vendor had executed sale deed in violation of the undertaking stands. The defendant-appellant against whom the order stands is a Central Government employee. He is stated to be working with the BSNL in a telephone exchange. He is, obviously, a person who is literate and by terms of employment, he is all the more expected to be obedient to orders of courts. Conduct from a Government servant to the contrary may even tend to indicate that he has acted in a manner quite unbecoming of a Government servant. We make this statement not to prejudice him but to indicate that his action of having executed a sale deed in derogation of the undertaking ought to have never come from him. FAO118/10 -: 4 :- 5.In the aforesaid background, particularly the fact that the plaintiff has been able to obtain the fruit of the decree and is now in possession of the property, we are inclined to accede to the very persuasive request made on behalf of the appellant that we may interfere with the order of the court below directing detention of the defendant in civil prison for a period of four months. The learned counsel for the appellant says that his client will be seriously prejudiced, if he undergoes detention since he is a Government servant. This is a matter which the appellant should have thought for himself even before he ventured to act in a manner that has resulted in gross affront and wilful disobedience of the order of the civil court, including the undertaking given to it. Yet, we are persuaded to think that powers under Order XXXIX Rules 2A and the power to punish for contempt are more to be utilised to uphold the dignity and majesty of the courts rather than to punish every wrong doer. Taking that view of the matter, we direct that FAO118/10 -: 5 :- the order for detention as contained in the impugned order will stand vacated and instead, the appellant will be liable to pay an amount of Rs.25,000/- as costs to the plaintiff-respondent, such amount to be payable from the balance sale consideration lying in deposit before the court below. The amount in deposit before the court below as may be due to the defendant would be released only after making such deduction. The appeal is allowed to the above extent. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/0609