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Abdullah Khan and ors. Vs. Banke Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.183
AppellantAbdullah Khan and ors.
RespondentBanke Lal and anr.
Excerpt:
civil procedure code (act v of 1908), order xxxix, rule 1 - 'wrongfully sold in execution of decree', meaning of--property attached in execution of a decree against another person--injunction to stay sale. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain..........was not maintainable under order xxxix, rule 1 inasmuch as property which is about to be sold in execution of a decree cannot be said to be in danger of 'being wrongfully sold in execution of a decree' within the meaning of the rule. in support of his contention he relied on the decision of this court in the matter of the petition of in re chando bibi 26 a. 311 : a.w.n. (1904) 37 which was followed in meghraj singh v. lala mal 4 a.l.j. 342 (note). as the bench before which the application came for hearing had doubts as to the correctness of the view taken in those cases, the application had been referred for disposal to this bench. with great respect to the learned judges, who decided the case referred to, i am of opinion that the application is maintainable tinder order xxxix,.....
Judgment:

Banerji, J.

1. This is an application under Order XXXIX, Rule 1, of the Code of Civil Procedure for an injunction restraining the respondent from proceeding with the sale of certain property which he has caused to be attached in execution of a decree. The decree was obtained by him against one Sheo Narain and in execution of it he caused certain immovable property to be attached. The plaintiffs applicants preferred an objection to the attachment on the allegation that the property had been sold to them by the judgment-debtor Sheo Narain, and that it was not liable to sale in execution of the decree obtained by the respondent. Their objection having been overruled they instituted a suit under Section 283 of Act No. XIV of 1882 for a declaration of their title to the property. The suit was dismissed by the Court of first instance and from the decree of that Court a first appeal has been preferred to this Court which is now pending, The applicants have presented this application for an ad interim injunction for stay of the sale of the property in suit pending the decision of the appeal.

2. Dr. Satish Chandra Banerji, in showing cause against the application, contended that the application was not maintainable under Order XXXIX, Rule 1 inasmuch as property which is about to be sold in execution of a decree cannot be said to be in danger of 'being wrongfully sold in execution of a decree' within the meaning of the rule. In support of his contention he relied on the decision of this Court in the matter of the petition of In re Chando Bibi 26 A. 311 : A.W.N. (1904) 37 which was followed in Meghraj Singh v. Lala Mal 4 A.L.J. 342 (note). As the Bench before which the application came for hearing had doubts as to the correctness of the view taken in those cases, the application had been referred for disposal to this Bench. With great respect to the learned Judges, who decided the case referred to, I am of opinion that the application is maintainable tinder Order XXXIX, Rule 1, which corresponds to Section 492 of the old Code of Civil Procedure. That section provides that where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, the Court may by order grant a temporary injunction to restrain such act. It is clear from the language of the section that the legislature contemplated that property might be in danger of being wrongfully sold in execution of a decree. The words 'wrongfully sold in execution of a decree' were added in the Code of Civil Procedure of 1877, (Act X. of 1877). They did not exist in Section 92 of Act VIII of 1859 and is manifest that when the words 'wrongfully sold in execution of a decree' were added by the Legislature, it was clearly intended that an injunction might be granted' when property, which the claimant Craimed to be his, was in danger of being sold in execution of a decree against another person, or even against himself. In certain circumstances it might be in danger of being wrongfully sold in execution of a decree against the plaintiff himself. For instance, if the plaintiff has instituted a suit for a declaration that the decree obtained against him was obtained by fraud, the property would be in danger of being wrongfully sold in execution of such a decree. Other instances are given in Dr. Satish Chandra Banerji's elaborate work on Specific Relief at page 741. This view, I have expressed above is supported by the Calcutta High Court in Brojendra Kunwar Rai Chaudhari v. Rup Lull Dass 12 C. 515 and also by the decision of Oldfield, J., in Gang a Nand v. Balgovind Das A.W.N. (1884) 349 which was followed in Kirpa Dayal v. Rani Kishore 10 A. 80.

3. As regards the merits of the case, I am of opinion that the case is one in which a temporary injunction ought to be granted as the question whether the property was under attachment at the date of the sale in favour of the applicants is one which should be determined in the appeal now pending. I would, therefore, allow the application as prayed.

Stanley, C.J.

4. I concur in the judgment which has been pronounced by my brother Banerjee. In an earlier case I was a member of a Bench which expressed approval of the decision in In re Chando Bibi 26 A. 311 : A.W.N. (1904) 37, namely, in the case of Meghraj Singh v. Lala Mal 4 A.L.J. 342 (note). At that time I was not aware of the amendment of the law by Act X of 1877. As has been pointed out, under Section 92 of Act VIII of 1859, the words 'or wrongfully sold in execution of a decree' did not exist in the earlier statute. These words, it appears to me, were obviously added to meet a case such as the present: and in view of this, it appears to me that the words in danger of being wrongfully sold' were not correctly interpreted in the case of In re Chawio Bibi 26 A. 311 : A.W.N. (1904) 37. After re-consideration of the matter, I am of opinion that in the judgment which has just been pronounced the section has been rightly interpreted.

5. I would, therefore, allow the application.

Tudball, J.

6. I fully concur and have nothing to add.

7. The order of the Court is that a temporary injunction be issued for the stay of the sale ordered in the execution proceeding pending the disposal of the appeal in this Court.

8. Let the hearing of the appeal be expedited.


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