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Balbhaddar Vs. Balla and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All387a
AppellantBalbhaddar
RespondentBalla and ors.
Excerpt:
- .....injunction and the suit came up for hearing on the same date. the injunction was granted and the suit decreed. both happened on the same day, 18th august 1926, and next day on 19th august balla made the transfer to ram ghulam which is brought into question in this suit. it was argued in the suit that the injunction having been issued the transfer was null and void. this argument is against authority. it was held by this court as far back as 1887 in chunni kuar v. dwarka prasad [1887] a.w.n. 297, that a temporary injunction came to an end with the passing of the decree. in that case the argument was advanced that a temporary injunction may be issued by court until further orders, so it may extend beyond the date of the decree. this court explained that until further orders provided for.....
Judgment:

Dalal, J.

1. Mr. Ghatak has argued this appeal with considerable skill, but I am afraid that the authority is against him. The plaintiff sued for a declaration that a certain mortgage executed by his judgment-debtor Balla in favour of Ram Ghulam was fictitious, ostensible, invalid and ineffectual according to law; that Balla had no right to transfer the property, and that Ram Ghulam had no right to accept the transfer. The plaintiff Balbhaddar sued Balla in the Court of Small Causes at Cawnpore on a simple money bond and at the same time applied under Order 39, Rule 1, Civil P.C., for an injunction to prevent him from transferring his house. Notices were issued and both the application for injunction and the suit came up for hearing on the same date. The injunction was granted and the suit decreed. Both happened on the same day, 18th August 1926, and next day on 19th August Balla made the transfer to Ram Ghulam which is brought into question in this suit. It was argued in the suit that the injunction having been issued the transfer was null and void. This argument is against authority. It was held by this Court as far back as 1887 in Chunni Kuar v. Dwarka Prasad [1887] A.W.N. 297, that a temporary injunction came to an end with the passing of the decree. In that case the argument was advanced that a temporary injunction may be issued by Court until further orders, so it may extend beyond the date of the decree. This Court explained that until further orders provided for an alteration in the order prior to the passing of the decree that is, the injunction may extend either up to the passing of the decree or to a time short of that until further orders of the Court. The injunction, therefore, became inoperative on the passing of the decree. I find from a note in one of the annotated editions that the same view was taken by the Madras High Court in 1924. The case is said to have been reported in Ayisa Umma v. K. Abdulla A.I.R. 1924 Mad. 178, of which a copy is not in this Court.

2. Going a little further the existence of an injunction does not render void an alienation made in contravention of the injunction. It was held by this Court in 1887 in Delhi and London Bank, Limited v. Ram Narain [1887] 9 All. 497, that the principles of S. 23, Contract Act, do not apply to such an alienation. This view was affirmed by a Bench of this Court in 1903 in Manohar Das v. Ram Autar Pande [1903] 25 All. 431. The same view was taken by the Madras High Court in 1918 in Pnzhakkal Edom v. Mahadeva Pattar : (1918)35MLJ96 on the authority of this Court.

3. Through some inadvertence no penalty appears to be provided in Order 39 for the breach of an injunction. It seems likely that the provisions of Rule 2 (3) Order 39 were intended to be applied to a breach of an injunction under Rule 1 also, but as Clause (3) is included under Rule 2 it would follow that the provisions of that clause will not apply to Rule 1. The Registrar shall be requested to bring this matter to the notice of the Rules Committee so that Clause (3), Rule 2, may be turned into a separate rule applicable both to breaches of injunctions issued under Rule 1 and under Rule 2.

4. The learned counsel referred to the provisions of Section 52, T.P. Act. Those provisions do not apply because the suit was a simple money suit and the house was not the subject of litigation in the suit, He further argued that the transfer would be invalid under Section 53 as he suggested that it was made in fraud of creditors. The lower appellate Court has held that the transaction was a genuine transaction. The argument under Section 53 will, therefore, not prevail.

5. His final argument was that even if the mortgage be held to be valid for the sum of Rs. 195 in respect of the mortgagee's prior debt it was invalid as regards Rs. 105 received in cash by Balla. The lower appellate Court, however, has disagreed with the opinion of the trial Court and has not held that Ram Ghulam was aware of the injunction and entered into a fraudulent transaction with Balla. There was a further prayer that the sale held in execution of plaintiff's decree be held to be invalid. That is a matter in execution and the plaintiff was not serious about that relief as it appears to me that the purchaser of the house in execution of his decree is a man of his own choosing.

6. I dismiss this appeal, but having regard to the circumstance of the case I make no order as to costs here.


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