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Narayan Misra Vs. Surendranath Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 134 of 1965
Judge
Reported inAIR1972Ori115; 37(1971)CLT1052
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1; Orissa Code of Civil Procedure (CPC) (Amendment) Act; Specific Relief Act, 1877 - Sections 56; Specific Relief (Amendment) Act, 1963 - Sections 41; General Clauses Act, 1897 - Sections 8
AppellantNarayan Misra
RespondentSurendranath Das and ors.
Appellant AdvocateR.C. Patnaik, Adv.
Respondent AdvocateH.G. Panda, Adv.
DispositionAppeal allowed
Cases ReferredDurga Prasad v. Banaras Bank Ltd.
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the legislature could have as well embodied all the provisions of section56 under the proviso without making any reference to section 56. our view therefore, is that since the entire provisions of section 56, as it were embodied in the proviso to order 39, rule 1, c. it is well known that a subordinate judge does not exercise any administrative control over a munsif. this contention is clearly unacceptable, firstly because, the subordinate judge as of right does not hear any appeal from the judgment of a munsif unless the district judge before whom the appealhas been filed transfers the same to the subordinate judge for disposal or such power..........as section 41 of the newact. therefore, any reference to section 56 of the old act in order 39. rule1. civil procedure code (as amended inorissa) must be construed as referenceto section 41 of the new act (see air1960 sc 569, state of uttar pradesh v.m. p. singh). 7. it is next contended by mr. h. g. panda, learned advocate appearing for the respondents that section 56 of the old act and its corresponding provision section 41 of the new act appear under the chapter headed 'perpetual injunctions' and that by force of section 53 of the old act corresponding to section 37 of the new act, the prohibition contained in section 56 of the old act and section 41 of the new act would not apply to the issue of temporary injunctions. in support ofthis contention he relied on a decision of the.....
Judgment:

Patra, J.

1. This is an appeal against an order of the Subordinate Judge, Puri allowing an application under Order 39, Rule 1. Civil P. C. The facts which are somewhat complicated are these: One Bhagaban Das had two sons Dinabandhu and Daitari Daitari had two sons, Narayan and Gopabandhu. Dina-bandhu's only son having died, he adopted Daitari's son Narayan. Narayan being issueless he adopted his daughter's son Sadananda Das (defdt. No. 3). Gopabandhu had two daughters. Defendant No. 1 Ratnakar Pati is the elder son-in-law and defendant No. 2 Narayan Misra is the younger son-in-law.

2. Shortly before his death. Gopabandhu executed a Will bequeathing the entire joint family properties belonging to him and Sadananda Das in favour of the family deity (defendant No. 4) and created a trust under the terms of which the members of the family were to be maintained out of the usufruct of the trust property. It also provided for the constitution of a Committee for managing the trust. The testator himself was to be the managing trustee and after his death defendant No. 3 was to be his successor in that office. On the death of Gopabandhu, defendant No. 3 became the sole surviving coparcener of the family and was in possession of the trust properties on behalf of the deity.

3. Defendant No. 2 Narayan Misra who had no manner of right either over these properties or in respect of the management thereof filed Title Suit No. 29 of 1945 in the Court of the Subordinate Judge, Puri claiming himself to be one of the trustees of the Deity and prayed for a declaration that defendant No. 3 had no right to interfere with the management of the properties. This suit was compromised and under the compromise defendant No, 3 accepted his position as marfatdar of the deity only in respect of eight annas interest of theproperties. Despite the compromise, however, defendant No. 3 continued to remain in possession of the entire properties. Defendant No. 2 then initiated a proceeding under Section 145, Criminal P. C. against defendant No. 3 and this proceeding terminated in favour of the latter. Thereupon, defendant No. 2 filed T. S. No. 369 of 1956 in the Court of the Munsif, Puri against defendant No. 3 for his removal from the marfatdarship of the Deity and in the alternative for framing of a scheme of management in respect of the deity's properties. The suit was contested by defendant No. 3 up to the High Court (Second Appeal Nos. 219 and 262 of 1962). The matter was, however, compromised in the High Court, and the compromise provided that a portion of the disputed properties would be allotted to defendant No. 4 and the balance would be divided equally between defendants 2 and 3. The decree passed being in the nature of a preliminary decree in T. S. No. 369 of 1956, defendant No. 2 applied for making the decree final and the final decree proceedings are pending at present in the Court of the Munsif. Puri.

4. While matters stood thus, Original Suit No. 51 of 1964 was filed in the Court of the Subordinate Judge, Puri by plaintiffs 1 to 6 who are the sons of Sadananda (deft. No. 3), plaintiff No. 7 who is the daughter and plaintiff No. 8 who is Sadananda's wife. Their case is that the disputed properties which were joint family properties devolved upon defendant No. 3 as the sole surviving coparcener and plaintiffs 1 to 6 who are sons have got their interests therein and defendants 7 and 8 are entitled to be maintained by defendant No. 3 from out of the suit properties. It is alleged that the compromise arrived at between defendants 2 and 3 in the Second Appeal Nos. 219 and 262 of 1962 was fraudulent and not binding on the plaintiffs. Pending disposal of the suit, they filed an application for the issue of an order of injunction restraining defendant No. 2 from making the decree final and from taking possession of the disputed properties which are the subject-matter of the final decree proceedings. After hearing both the parties, the Subordinate Judge passed the impugned order restraining defendant No. 2 from taking possession of the disputed properties. He did not pass any order restraining defendant No. 2 from continuing the final decree proceedings. Hence this appeal by defendant No. 2.

5. The two main grounds urged in support of the appeals are:--

(1) Having regard to the provisions of Order 39. Rule 1. Civil P. C. as amended in Orissa, the impugned order granting temporary injunction till dis-posal of the suit is against law: and

(2) Assuming that Order 39, Rule I, Civil P. C. as amended in Orissa is no bar, the Court below has, having regard to the facts of the case, erred in granting injunction.

Order 39. Rule 1. Civil P. C. as amended in Orissa in so far as is material reads thus :--

'1. Cases in which temporary injunc-tion may be granted--Where in any suit it is proved by affidavit or otherwise--(a) that any prooerty 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, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors.

the Court may by order grant a temporary injunction to restrain such act. or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 of the Specific Relief Act (Act 1 of 1877);x x x x'

The Specific Relief Act (Act I of 1877)(hereinafter to be referred to as the oldAct) has since been repealed by the Specific Relief Act 1963 (Act 47 of 1963)(hereinafter to be referred to as the newAct). Section 56 of the old Act so far asis material ran thus :--

'56. An injunction cannot be granted--

(a) xx xx xx(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;xx xx xx'

Under Section 56 of the old Act thereforewhat was prohibited was the issue of aninjunction to stay proceedings in a Court,not subordinate to that from which theinjunction is sought. The proceedingwhich was pending at the time of the in-stitution of the suit and which is stillpending is the final decree proceedingwhich has not been stayed by the impugned order. The effect of the impugned order is to restrain defendantNo. 2 from taking possession of the disputed property. The occasion to takepossession of the disputed propertywould arise only after final decree ispassed and a fresh proceeding is instituted to execute the final decree. Asthe stage of instituting a proceeding totake possession of the disputed propertyhas not yet been reached, there is no occasion to stay any such proceeding. It cannot, therefore, be said that by passing the impugned order the Court of the Subordinate Judge has stayed the proceeding in any Court. If Section 56 of the old Act is applicable to the facts of the present case, the impugned order cannot be said to contravene the proviso to Order 39, Rule 1, Civil Procedure Code and the question whether the Court of the Munsif is subordinate to that of the Subordinate Judge would not therefore arise for consideration. But as no proceeding for delivery of possession was pending, a case for issue of injunction did not exist, and the order is liable to be set aside on that ground alone, even if Section 56 applied. The old Act has since been repealed by the new Act. Section 56 of the old Act which enumerated cases where Injunction should be refused is replaced by Section 41 of the new Act with slight modifications. Sub-section (b) of Section 41 of the new Act which corresponds to Sub-section (b) of Section 56 of the old Act runs thus.

'41. Injunction when refused :-- An injunction cannot be granted,

x x x x x(b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought;x x x x x'

Sub-section (b) therefore not only prohibits the passing of an order of iniunction restraining any person from prosecuting any proceeding but it also prohibits the passing of an order of injunction to restrain any person from instituting any proceeding, in a Court not subordinate to that from which the injunction is sought. As already stated, before defendant No. 2 can make an application for taking possession of the disputed properties, he is to have a final decree and it is for passing of this final decree that he has instituted a proceeding in the Munsif's Court. The Court by passing the impugned order restraining defendant No. 2 from taking possession of the suit lands has therefore indirectly restrained him from prosecuting the final decree proceedings pending in the Court of the Munsif, The question, therefore, is whether Section 41 of the new Act is applicable to this case. If Section 41 of the new Act applies to the present case, the further question would directly arise whether the Court of the Munsif is subordinate to that of the Subordinate Judge. The two questions that arise for consideration are --

(1) Whether Section 41 of the new Act would be applicable notwithstanding the fact that the proviso to Order 39, Rule 1, Civil Procedure Code (as amended in Orissa) has not been amended by substituting therein Section 41 of the new Act in place of Section 56 of the old Act; and

(2) Whether the Court of the Munsif is subordinate to that of the Subordinate Judge.

6. The first question does not present any difficulty. By virtue of Section 8 of the General Clauses Act, 1897, the reference to Section 56 of the old Act in the first proviso to Order 39, Rule 1, Civil Procedure Code must be construed as a reference to Section 41 of the new Act which repealed the, earlier Act and re-enacted it. Section 8 of the General Clauses Act so far asl is material runs thus :--

'8. Construction of reference to repealed enactments -- (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision sq repealed shall unless a different intention appears, be construed as references to the provisions so re-enacted.x x x x x'

It does not matter that the new Actwas not a repealing and amending Act,but an Act to define and amend the lawrelating to certain kinds of specific relief. Section 8 of the General ClausesAct does not require that the latter Actrepealing and re-enacting an earlier Actshould be a repealing and amendingAct. All that it requires is that a Central Act should repeal and re-enact aformer enactment either with modification or without it. Section 56 of theold Act with slight modifications hadbeen enacted as Section 41 of the newAct. Therefore, any reference to Section 56 of the old Act in order 39. Rule1. Civil Procedure Code (as amended inOrissa) must be construed as referenceto Section 41 of the new Act (See AIR1960 SC 569, State of Uttar Pradesh v.M. P. Singh).

7. It is next contended by Mr. H. G. Panda, learned Advocate appearing for the respondents that Section 56 of the old Act and its corresponding provision Section 41 of the new Act appear under the Chapter headed 'Perpetual Injunctions' and that by force of Section 53 of the Old Act corresponding to Section 37 of the new Act, the prohibition contained in Section 56 of the old Act and Section 41 of the new Act would not apply to the issue of temporary injunctions. In support ofthis contention he relied on a decision of the Patna High Court in Indu Sekhar Agarwal v. Phulo Devi. 1968 BLJR 268, It may be stated here that Order 39 Rule 1, C. P. C. as it stands amended in Orissa. is identical with Order 39, Rule 1 C.P.C. as amended in Patna. In the State of Bihar. Order 39. Rule 1, C. P. C. is subject to the proviso that no temporary injunction should be granted if it would contravene the provisions of Section 56 of the Specific Relief Act, 1877. The sole point canvassed in the Patna High Court in the case referred to above was that the Subordinate Judge. Beg-usarai, had no jurisdiction to stay the execution case pending before the Subordinate Judge, Muzaffarpur, as the latter Court was not subordinate to the Court of the Subordinate Judge. Begu-sarai and that in granting stay the provisions of Section 56 of the old Act which has been replaced by Section 41 of the new Act have been contravened. Raj Kishore Prasad, J, In overruling this objection observed :

'I have already held above that even under Section 53 of the old Specific Relief Act, the Specific Relief Act did not govern the granting of temporary injunctions. The first proviso of the amended Rule 1 of Order 39 of the Code, no doubt, says that no such tempo-rary injunction shall be granted if it contravenes the provision of Section 56 of the Specific Relief Act, 1877; but it has to be read subject to Section 53 of the Act, which as I said before, has been replaced by Sections 37 and 41 of the new Act respectively. When under the old Act, Section 56 did not debar issue of temporary injunction until specified time in view of Section 53; I cannot understand how temporary injunction under Section 41(b) in view of Section 37(1) cannot be granted. I would, therefore, overrule this objection.'

With respect we are unable to share the view of the learned Judge. True it is, that Section 41 of the new Act (Section 56 of the old Act) applies to the grant of perpetual injunctions and Section 37 of the new Act (Section 53 of the old Act) says that grant of temporary injunctions are regulated by the Code of Civil Procedure. But Order 39, Rule 1 which regulates the grant of temporary injunctions itself contains the provision that no such injunction can be granted if it contravenes the provisions of Section 56 of the old Act corresponding to Section 41 of the new Act. It is only for the sake of convenience that reference is made to Section 56 of the old Act. The Legislature could have as well embodied all the provisions of Section56 under the proviso without making any reference to Section 56. Our view therefore, is that since the entire provisions of Section 56, as it were embodied in the proviso to Order 39, Rule 1, C.P.C. have become a part of that rule those provisions would come into play in the case of temporary injunctions.

8. The next question is whether the Court of the Munsif is subordinate to that of the Subordinate Judge. When this appeal came up before me in the first instance, I was prima facie of the view that the Court of the Munsif is not subordinate to that of the Subordinate Judge within the meaning of Section 41 of the new Act. But having regard to the fact that this is a question of general importance and is likely to arise frequently in subordinate Courts, specially in matters of issue of injunction orders, and as this specific question did not appear to have come up for decision in any High Court. I considered it expedient to refer the matter to the Division Bench and this is how the appeal has come UD before us for disposal.

9. Section 3 of the Civil Procedure Code which deals with subordination of Courts merely states that--

'For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of small Causes is subordinate to the High Court and district Court.'

Section 9 of the Bengal, Agra and Assam Civil Courts Act, 1887 deals with administrative control of Courts and provides that subject to the superintendence of the High Court, the District Judge shall have administrative control over all the Civil Courts under the Act within the local limits of his jurisdiction. These two provisions which deal with subordination of Courts merely provide inter alia that every Civil Court of a grade inferior to that of a District Court is subordinate to the District Court. If it was intended that the Court of a Munsif shall be subordinate to the Court of the Subordinate Judge nothing prevented the Legislature from saying so. It is well known that a Subordinate Judge does not exercise any administrative control over a Munsif. It is. however, contended by Mr. Panda that as the Subordinate Judge hears appeals against judgments passed by the Munsif, the latter must be deemed to be subordinate to be former. This contention is clearly unacceptable, firstly because, the Subordinate Judge as of right does not hear any appeal from the judgment of a Munsif unless the District Judge before whom the appealhas been filed transfers the same to the Subordinate Judge for disposal or such power is conferred on the Subordinate Judge by special notification, and secondly because, there is nothing to indicate that a 'Court subordinate' within the meaning of Section 41 of the new Act means mere judicial subordination. Undoubtedly the Court of the Munsif is inferior in grade to that of the Subordinate Judge. But this does not mean that the Court of the Munsif is subordinate to that of the Subordinate Judge. In Ladli Parshad Jaiswal v. Karnal Distillery Ltd. (AIR 1963 SC 1279), their Lordships held that the ex-pressibn 'Court immediately below' occurring in Article 133(1) of the Constitution does not mean 'Court subordinate.' This view is reiterated in Durga Prasad v. Banaras Bank Ltd., (AIR 1963 SC 1322). These decisions strengthen our view that merely because the ' Court of a Munsif is inferior in grade to the Subordinate Judge, it is not a Court subordinate to the latter within the meaning of Section 41 of the new Act. Our conclusion, therefore, is that the Court of the Munsif, Puri is not subordinate to that of the Subordinate Judge, Puri and that consequently the Subordinate Judge in issuing the order of temporary injunction has violated the proviso to Order 39, Rule 1, Civil Procedure Code.

10. In the result, we would allow this appeal and set aside the order of ad interim injunction passed on 17-6-1965 by the learned Subordinate Judge, Puri. In the circumstances, there shall be no order as to costs.

G.K. Misra, C.J.

11. I agree.


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