1. This is a revision application under Section 115 of the Code of Civil Procedure, 1908, by the original defendant No. 1 against the order dated 3-12-1976 passed by the learned Assistant Judge, Nagpur in Miscellaneous Civil Appeal No. 50 of 1976 confirming the order dated 25-3-1976, passed by the III Joint Civil Judge, Junior Division, Nagpur, in Regular Civil Suit No. 198 of 1976 granting the application for temporary injunction filed by the original plaintiff.
2. The plaintiff is the son of defendant No. 1 and he filed the suit for partition and separate possession of joint Hindu family property. So far as the present revision is concerned, the dispute relates to 2.50 acres of land of Survey No. 105/2 of village Parsodi. The defendant No. 1 had filed an application under Section 145, Criminal Procedure Code, in the Court of the Sub-Divisional Magistrate, Nagpur, alleging that he was dispossessed by his son the plaintiff two months next before the filing of that application. The S.D.M. by his order dated 19-11-1975 found that the defendant No. 1 was entitled to possession of this land as hewas dispossessed by the plaintiff within 2 months next before the filing of that application. The plaintiff had preferred Criminal Revision Application No. 110 of 1975 against the said order of the S.D.M. before the Sessions Judge, Nagpur, who by his order dated 23-2-1976 confirmed the order passed by the S.D.M.
3. The plaintiff just 3 days before the order passed by the Sessions Judge in the earlier proceedings filed the present suit on 22-7-1976 for partition and separate possession. He filed an application under Order 39, Rule 2, C.P.C. read with Section 151, praying that the defendant No. 1 be restrained from taking possession of the land in question in execution of the order passed by the S.D.M. and confirmed by the Sessions Judge.
4. The learned trial Judge found that the plaintiff made out the prima facie case as he was in actual possession of this land; that the balance of convenience was also in his favour and an irreparable injury would be caused to him in case the application is not allowed. He, therefore, passed an order allowing the application for temporary injunction.
5. Feeling aggrieved by this order, the defendant No. 1 filed Miscellaneous Civil Appeal No. 50 of 1976. The Assistant Judge, Nagpur, dismissed the said appeal and confirmed the order of the trial Court. It is against the two concurrent findings of the lower Courts that the present revision application has been filed by the original defendant No. 1.
6. Shri Moharir, the learned counsel for the applicant raised a basic and preliminary objection that the application made by the respondent-plaintiff was in fact not covered by the provisions of Order 39, Rule 2, C.P.C. as there was no legal injury that was caused to the respondent if the order of the S.D.M. passed under Sec. 145, Cr. P. C. and confirmed by the Sessions Judge was to be executed.
7. It is not disputed that the non-applicant-plaintiff was in actual possession of this property when the proceedings under Section 145, Cr. P. C. were initiated by this applicant and that he was also in possession when thepresent suit for partition and separate possession was filed by the respondent.
8. The learned Sub-Divisional Magistrate found that it was this applicant (defendant No. 1) who was in possession of this land in question and was dispossessed by the respondent (plaintiff). The proviso to Sub- clause (4) of Section 145, Cr. P. C. reads thus:--
'Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1).' It was observed in R. H. Bhutani v. Mani J. Desai : 1969CriLJ13 :--
'Sub-section (6) of Section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law. In AIR 1926 Bom 91 the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has -since then been in possession or has filed a suit for a declaration of title and for injunction restraining the disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dispossessed party was in actual or deemed possession under the second proviso.'
Thus, in the instant case the learned Magistrate directed the non-applicant-plaintiff to restore possession to the applicant-defendant No. 1 holding that the latter who was in possession of this property within two months next before the date of the application was wrongfully dispossessed by the applicant-plaintiff. What the applicant-defendant No. 1 is trying to do is to execute a lawful order that is passed in his favour. In view of this matter, it cannot be said that any legal injury is being caused to the respondent-plaintiff within the meaning of Order 39, Rule 2, C.P.C.
9. In Kripa Natha Chakravarty v. Rup Chand Lunawat AIR 1955 GAU 156 the facts were almost similar, except that the earlier proceedings in that case were under Section 147, Cr. P. C. An application under Order 39, Rule 2, C.P.C. was filed restraining the other party from executing the order passed under Section 147, Cr. P. C. and under those circumstances their Lordships observed as under:--
'All wrongs covered by the expression 'tort' would be within the scope of the expression but there has to be an injury and that injury would necessarily be a result of the wrong. It is not possible to say that a party who has secured an order in his favour under ,S. 147 Cr. P. C. to use a particular path or to have the right of way over it, commits any wrong or is causing, any injury to any one by exercising the right which the order under S. 147, Cr. P. C. recognises. The order is the result of a summary proceeding and he can be deprived of that right only by the decision of a Civil Court against him on the question of title. Order 39, Rule 2 therefore would not be applicable to a case where such an order -exists. The order of the learned Subordinate Judge in these circumstances is not sustainable,'
Shri Fulzele, the learned counsel for the respondent-plaintiff, referring to Sayyed Munira Begum v. Mathew Abrahim 1977 MahLj 25 submitted that the orders passed by the Executive Magistrate under Section 145, Cr. P. C. are subject to the orders passed by the Civil Court. In fact, there can be no quarrel with this proposition. The order passed by the Sub-Divisional Magistrate and confirmed by the Sessions Judge under Section 145, Cr. P. C. in this case would be subject to the ultimate decision of the suit.
10. I thus find that the learned trial Judge and the learned Assistant Judge were both clearly in error in allowing the application of the respondent-plaintiff under Order 39, Rule 2, C.P.C. on the assumption that a legal injury was calculated to be caused to the respondent by enforcement of the order passed in the proceeding under Section 145, Cr. P. C. The order, therefore, being unsustainable has to be set aside and the appeal has to be allowed.
11. The appeal is allowed. The impugned order passed by the AssistantJudge confirming the order of the IIIJoint Civil Judge, Junior Division,Nagpur, granting the application of therespondent for temporary injunction isset aside. The respondent to pay thecosts of the applicant.
12. Petition allowed.