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NaraIn Das Vs. Muhammad Inamullah Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All423
AppellantNaraIn Das
RespondentMuhammad Inamullah Khan
Excerpt:
code of civil procedure (1908), order xxxviii, rule 5; order xxxix, rule 1 section 94 - injunction--malikana dues. - - we may assume that it was intended to give the court powers outside the orders and rules in exceptional cases......it is clear that in the event of the mortgaged property not realizing sufficient to satisfy the decree, a decree can be passed under order xxxiv, rule 6. we will assume, for the purposes of this appeal, that the property mortgaged will not realize sufficient to satisfy the decree. it appears to us clear that the case does not fall either within order xxxviii, rule 5, or within order xxxix, rule 1, of the code of civil procedure. there is no suggestion that the appellant is about to dispose of the whole or any part of his property, or remove it from the jurisdiction of the court, or that any property in dispute is in danger of being wasted, or that the appellant intends to remove his property with a view of defrauding his creditors. all that the appellant in the present case insists.....
Judgment:

Chamier and Piggott, JJ.

1. This appeal arises out of an order passed in the course of proceedings taken to execute a decree dated November the 23rd, 1911. It appears that in August, 1901, the appellant mortgaged to the respondent his right to receive what are described as taluqdari malikana dues from a number of villages. A decree nisi for sale of the property was passed in favour of the respondent on November the 23rd, 1911. There was an appeal to this Court, which was dismissed in April, 1913, and an order absolute for sale of the property was passed on February the 10th, 1914. In March of the same year the respondent applied for sale of the property. Notice was issued to the appellant who put forward objections. Those objections were ultimately dismissed and an order was made that the property should be sold. On July the 10th, 1914, the respondent applied to the court to issue an injunction to the appellant restraining him from receiving the malikana dues. At first sight it seems to be an application under Order XXXIX, Rule 1, of the Code of Civil Procedure, but from certain expressions used in the application it may have been an application under Order XXXVIII, Rule 5, of the Code of Civil Procedure. The court ex parte made an order as prayed and issued an injunction. Objections were put forward, which were dismissed and the ex parte order of the court was maintained. This is an appeal against the last mentioned order.

2. As the appellant has a right of appeal whether it was an order of attachment or an order for the issue of injunction, it is unnecessary to consider whether it was passed under Order XXXVIII or under Order XXXIX of the Code of Civil Procedure. In appeal it is contended that the court had no power either to attach the malikana dues or to prevent the appellant by injunction from receiving them. It is contended that all that the respondent is entitled to do under his decree, is to have the property sold. For the respondent it is contended that it is competent to a court to attach property in a case of this kind at all events, where it is clear that in the event of the mortgaged property not realizing sufficient to satisfy the decree, a decree can be passed under Order XXXIV, Rule 6. We will assume, for the purposes of this appeal, that the property mortgaged will not realize sufficient to satisfy the decree. It appears to us clear that the case does not fall either within Order XXXVIII, Rule 5, or within Order XXXIX, Rule 1, of the Code of Civil Procedure. There is no suggestion that the appellant is about to dispose of the whole or any part of his property, or remove it from the jurisdiction of the court, or that any property in dispute is in danger of being wasted, or that the appellant intends to remove his property with a view of defrauding his creditors. All that the appellant in the present case insists upon doing is receiving the income of the property until a sale takes place. In the last resort it is contended that the court was justified in passing the order under appeal either under Clause (c) or Clause (e) of Section 94 of the Code of Civil Procedure. It is a question whether the clauses referred to are intended to authorise a court to grant injunctions or to make attachments in cases not provided for by the orders or rules. We may assume that it was intended to give the court powers outside the orders and rules in exceptional cases. In the present case we see no reason to take action of an extraordinary character. The order absolute for sale was not passed until February, 1914, and it cannot be said that the appellant has for any great length of time prevented the respondent decree-holder from enforcing his decree. Assuming therefore that Section 94 can be construed in the way suggested by the respondent, we are not prepared to hold that the present case is covered by that section. It seems to us that the court below was not justified in either attaching the malilcana dues or restraining the appellant by injunction from receiving them. We allow the appeal and set aside the order of the court below. The respondent will pay the appellant's costs of this appeal. The record should be sent back at once so that further execution may not be delayed.


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