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Gyangirji Narsinggirji Math Vs. Dhanrajgirji Raja Narsingh Girji and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberAppeal No. 71 of 1958
Judge
Reported inAIR1967Bom94; (1966)68BOMLR207
AppellantGyangirji Narsinggirji Math
RespondentDhanrajgirji Raja Narsingh Girji and ors.
Appellant AdvocateK.H. Bhabha, Adv.
Respondent AdvocateS.V. Gupte and ;Bhagwati, Advs.
Excerpt:
the case dealt with the injunction which the plaintiff had sought for restraining the defendants from dealing with or alienating certain properties - it was ruled that the refusal to grant such an injunction does not affect any right of the plaintiff to the properties which belonged to him, as per his statement - it was also held that the order dismissing the notice of the motion by the plaintiff did not determine or affect any right of the plaintiff and therefore it is not a judgment with in the meaning of clause 15 of the letters patent - .....out for obtaining an injunction restraining the defendants from dealing with or disposing of the suit properties or from taking any proceeding in execution of the decree for sale passed in suit no. 452 of 1954 and from selling the suit properties or any part thereof. the plaintiff's case briefly is that the suit properties belong to a math, of which defendant no. 1 is the mahani. he has alienated these properties to defendants nos. 2 to 5. the plaintiff has, therefore, in his suit asked for a declaration that he is the owner of the said properties and that the defendants had no right to deal with or alienate these properties. he has also asked for a declaration that the decree passed in suit no. 452 of 1954 is invalid, inoperative and not binding upon him. during the pendency of the.....
Judgment:

1. This is an appeal by the original plaintiff against the order passed by Mr. Justice K.K. Desai dismissing the notice of motion, which the plaintiff had taken out for obtaining an injunction restraining the defendants from dealing with or disposing of the suit properties or from taking any proceeding in execution of the decree for sale passed in Suit No. 452 of 1954 and from selling the suit properties or any part thereof. The plaintiff's case briefly is that the suit properties belong to a Math, of which defendant No. 1 is the Mahani. He has alienated these properties to defendants Nos. 2 to 5. The plaintiff has, therefore, in his suit asked for a declaration that he is the owner of the said properties and that the defendants had no right to deal with or alienate these properties. He has also asked for a declaration that the decree passed in Suit No. 452 of 1954 is invalid, inoperative and not binding upon him. During the pendency of the suit the plaintiff took out a notice of motion for restraining the defendants from dealing with or alienating these properties or from taking further steps in execution of the decree passed in Suit No. 452 of 1954. this notice of motion was dismissed by Mr. Justice K.K. Desai.

(2) Mr. Gupte, who appears on behalf of the respondents, has taken a preliminary objection that the appeal is not maintainable. He has relied on the decisions of this Court in 21 Bom LR 955 : AIR 1920 Bom 309 Vanichand v. Lakhmichand and : AIR1958Bom210 Salem homed v. Mahomed Taher. In the former case it was held that an order refusing to restrain the defendant by an order and injunction from prosecuting his suit in a foreign Court is not a judgment within the meaning of clause 15 of the Letters Patent and that no appeal lies from such an order. In the other case, it was held that an order refusing to appoint a Receiver is not a judgment within the meaning of clause 15 of the Letters Patent and, therefore, no appeal lies from such an order. Mr. Bhabha, who appears on behalf of the appellants, has tried to distinguish these decisions. He has urged that the decision in Salemohamed's case : AIR1958Bom210 relates to an order refusing to appoint a Receiver. In the present case, the order appealed against is an order refusing to issue an injunction. Mr. Bhabha has also urged that in Vanichand's case 21 Bom LR 955 : AIR 1920 Bom 309 the refusal of the injunction left that parties at large to prosecute suits in forums of thier own choice and that, consequently, no rights of parties could be said to have been decided. He has also relied on the observations of Chagla C. J. in Mansata Films distributors v. Sorab Modi, : AIR1955Bom266 where the learned Chief Justice has observed that if an interlocutory order determines the right of a party even pro tanto, then the party whose right has been affected would have the right to appeal against that order. It was further observed that,. where the Court refuses to grant an injunction against the defendant from proceeding with the suit filed by him in another Court, the result of the Court's order is that both the suits are permitted to go on and neither party's right to prosecute his suit is affected. Where, however, a party is restrained from prosecuting his suit, his right of prosecuting the suit in forum of his own choice is affected. We do not see how these observations can help Mr. Bhabha. As pointed out in Salmahomend's case, : AIR1958Bom210 so far as this Court is concerned, it has always adopted the definition of the word 'judgment' given by Couch C. J., in The Justice of the Peace for Calcutta v. The Oriental Gal Co. (1872) 8 Ben LR 433, as a guide for determining whether there is a judgment within the meaning of Clause 15 of the Letters Patent, against which an appeal lies. Couch C. J., defined the word 'Judgment' as meaning a decision which affects the merits of the question between the parties by determining some right or liability. Mr. Bhabha has urged that it cannot be said of every order refusing an injunction that it does not determine the rights of parties even pro tanto. It is not necessary for us to decide this question in this appeal. So far as the present appeal is concerned, the injunction, which the plaintiff had sought, was an injunction restraining the defendants from dealing with or alienating certain properties. The refusal to grant such an injunction does not affect any right of the plaintiff to the properties which according to him, belong to him. There is no decision in regard to his rights. Mr. Bhabha has urged that, if the properties are alienated, it might become difficult for him to obtain possession thereof. In the suit, however, he has not asked for the possession of the properties. As will be seen from the affidavit filed on his behalf of one Mohant Harchand Gyangirji on 30th August 1958, it also appears to be his case that, according to the custom and usages of the Math, the Mahant, that is the defendant No. 1, is entitled to all the income of the Math and to use this income without being accountable to any party during his life time. But, even if the plaintiff has a right to immediate possession of the properties, that right is not affected by the order refusing the injunction asked for by him.

(3) The order dismissing the notice of motion taken out by the plaintiff does not, therefore, determine or affect any right of the plaintiff. It is, therefore, not a judgment within the meaning of clause 15 of the Letters Patent. Consequently, no appeal lies against that order.

(4) The appeal will, therefore, be dismissed with costs. Attorneys for respondents 2 to 5 are allowed to withdraw the sum of Rs. 500 deposited by the appellants for their costs.

(4) Appeal dismissed.


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