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Kirpa Dayal Vs. Rani Kishori and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All80
AppellantKirpa Dayal
RespondentRani Kishori and ors.
Excerpt:
temporary injunction - civil procedure code, section 492--'wrongfully' sold in execution of decree. - .....executed on the 20th june 1876, by one laik singh, for rs. 7,000. on the 5th may 1881, musammat rani kishori instituted a suit for the recovery of rs. 22,926-10-6 from chunni lal, manik ram, and kishen das, and, on the 20th september following, obtained a decree from the subordinate judge of mainpuri. while this suit was pending musammat rani kishori, on the 17th may 1881, obtained an interim attachment of the bond for rs. 7,000 as then being in the hands of the three defendants, and subsequently, on the 13th june, a further attachment directed to sah kirpa dayal, the now applicant, into whose possession it had passed, and the attachment was perfected on the 29th of the same month. objections were then filed by sah kirpa dayal, but were disposed of adversely to him, and he then.....
Judgment:

Straight, J.

1. This is an application for an interim injunction under Section 492 of the Civil Procedure Code. The following are the circumstances under which it has been preferred: Sab Kirpa Dayal, the applicant before me, is the alleged assignee by an instrument of the 17th April 1881 of, among other things, the rights as mortgagee of the three persons, Chunni Lal, Manik Ram, and Kishen Das, under a mortgage executed on the 20th June 1876, by one Laik Singh, for Rs. 7,000. On the 5th May 1881, Musammat Rani Kishori instituted a suit for the recovery of Rs. 22,926-10-6 from Chunni Lal, Manik Ram, and Kishen Das, and, on the 20th September following, obtained a decree from the Subordinate Judge of Mainpuri. While this suit was pending Musammat Rani Kishori, on the 17th May 1881, obtained an interim attachment of the bond for Rs. 7,000 as then being in the hands of the three defendants, and subsequently, on the 13th June, a further attachment directed to Sah Kirpa Dayal, the now applicant, into whose possession it had passed, and the attachment was perfected on the 29th of the same month. Objections were then filed by Sah Kirpa Dayal, but were disposed of adversely to him, and he then instituted two suits, one against his three assignors and Musammat Rani Kishori to have the instrument of the 17th April 1881 and his right thereto declared valid, the other to recover Rs. 19,284-3-6 from his three assignors upon the basis of the assignment--Musammat Rani Kishori upon her own application being joined as a party. Both these suits were filed in the Court of the Judge of Mainpuri, who, on the 21st August 1882, at the instance of Sah Kirpa Dayal, issued an injunction to restrain Musammat Rani Kishori from bringing the instrument of the 17th April 1881, to sale in execution of her decree of the 20th September 1881. This order was upheld in appeal by this Court. The two suits of Sah Kirpa Dayal were subsequently tried together by the Judge of Mainpuri, who, on the 7th of June last, found that the alleged assignment of the 17th April 1881 was in fact made after the attachment issued at the instance of Musammat Rani Kishori on the 17th May 1881, in collusion between the three assignors and Sah Kirpa Dayal with the object of defeating such attachment, and he dismissed both the suits brought by the latter. Sah Kirpa Dayal filed an appeal in this Court from the decision of the Judge on the 28th July last, and on the 29th of the same month preferred the application which I now have to dispose of. It is not without some hesitation that I have come to the conclusion to grant it, my chief difficulty being caused by the word 'wrongfully' in Section 492 of the Code under which it is presented. It seems to me that we cannot be too careful as to the mode in which we permit the machinery of the Courts to be used for the purpose of enabling a plaintiff in one suit to delay a decree-holder in another from obtaining the fruits of his judgment by executing his decree in ordinary course against the property of his judgment-debtor. At the same time it is of course most desirable to guard as far as possible against a multiplication of suits, and I presume that this was one of the objects the Legislature had in view in passing Section 492 in its present shape. I cannot but feel that if Musammat Rani Kishori is allowed to proceed with the sale of the rights and interests of her judgment-debtors under the mortgage of the 20th of June 1876, many complications are likely to arise which would probably result in further litigation in some shape or another, whereas if she is restrained from doing so until after the appeal in this Court has been disposed of, no practical injury that I can see will result to any one. I am considerably influenced in taking this view by the circumstance that my brothers Brodhurst and Tyrrell sanctioned the injunction granted by the Judge of Mainpuri, when the suit was in its original stage, as also by the fact that in First Appeal No. 113 of 1881, a not dissimilar case, not reported, my brother Oldfield adopted a similar course to that which I propose Co follow. Upon the applicant Sah Kirpa Dayal executing a bond with two sureties for Rs. 10,000 by way of security, let an interim injunction issue to the Subordinate Judge of Mainpuri, directing him not to hold the sale of the instrument for Rs. 7,000 executed by Laik Singh and dated the 20th June 1876, until he has received notice from this Court that this injunction has been dissolved.

2. The costs of this application will be costs in the cause.


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