Skip to content


Kusuma Dei and ors. Vs. Malati Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 356 of 1965
Judge
Reported inAIR1969Ori195; 35(1969)CLT377
ActsCode of Civil Procedure (CPC) , 1908 - Sections 64 - Order 22, Rule 10(1) - Order 39, Rules 1 and 2(3)
AppellantKusuma Dei and ors.
RespondentMalati Bewa and ors.
Appellant AdvocateM.N. Das, ;M.K.C. Rao, ;A.K. Rao and ;R.N. Misra, Advs.
Respondent AdvocateS. Mohanty, ;R.C. Mohanty and ;P.K. Patnaik, Advs.
Cases ReferredLal Chand v. Sohan Lal. His Lordship
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of injunction to restrain the parties not to make any pendente lite transfers. on 13-5-64 the learned subordinate judge passed an order that for the ends of justice both the plaintiffs and defendants i to 3 should be restrained, during the pendency of the suit, from transferring any immovable property mentioned in the plaint schedule without express leave of the court being obtained by an application. despite this injunction order, defendant no. 1 (who died during the pendency of this revision) transferred on 14-12-64 some lands in favour of the petitioners who have not yet been implead-ed as parties to the suit. on 30-11-65 the petitioners filed an application before the subordinate judge to implead them as defendants and also to allow their bhag tenants to harvest the paddy crop......
Judgment:
ORDER

G.K. Misra, J.

1. The plaintiffs' suit was one for partition claiming 1/3rd interest in the total property. Defendant No. 1 and defendant No. 3 each claim 1/3rd interest. It appears that defendant No. 1 made indiscriminate transfers. The plaintiffs accordingly asked for an order of injunction to restrain the parties not to make any pendente lite transfers. On 13-5-64 the learned Subordinate Judge passed an order that for the ends of justice both the plaintiffs and defendants i to 3 should be restrained, during the pendency of the suit, from transferring any immovable property mentioned in the plaint schedule without express leave of the Court being obtained by an application. Despite this injunction order, defendant No. 1 (who died during the pendency of this revision) transferred on 14-12-64 some lands in favour of the petitioners who have not yet been implead-ed as parties to the suit. On 30-11-65 the petitioners filed an application before the Subordinate Judge to implead them as defendants and also to allow their bhag tenants to harvest the paddy crop. The learned Subordinate Judge in his order dated 1-12-65 dismissed the prayer for according permission to the tenants to harvest the crop. The order does not deal with the other prayer regarding addition of the petitioners as defendants. Against the order of the learned Subordinate Judge, this Civil Revision has been filed.

2. Mr. Misra does not assail the decision of the learned Subordinate Judge refusing permission to the bhag tenants of the petitioners for harvesting the paddy. The only point urged in this revision is that the petitioners should have been allowed to be impleaded as parties to the suit. Order 22, Rule 10 (1), C. P. C. lays down that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may by leave of the Court, be continued by oragainst the person to or upon whom such interest has come or devolved. Admittedly the petitioners have purchased certain properties of deceased defendant No. 1 on 14-12-64. It is for the petitioners to guard their interest in the suit itself. There is no reason why they should not be accorded permission.

3. The only obstacle in their path is the injunction order passed by the Subordinate Judge on 13-5-64 restraining the plaintiffs and defendants 1 to 3 from effecting any alienation. The question for consideration is whether the sale in violation of the injunction order is a nullity. If it is a nullity and void, the sale has no existence and the petitioners would have no right to be impleaded in the suit. If, on the other hand, the sale is not a nullity, an interest was created in favour of the petitioners by the sale even though it may ultimately be found that either defendant No. 1 had no transferable interest or by the time of transfer he had no further interest in the properties in suit.

Those are matters which would be properly gone into in the suit itself. At this stage all that can be said is that by the sale the petitioners acquired the interest of defendant No. 1. Authorities seem to be one-sided that a purchase in violation of an injunction order is not a nullity. A comparison is made between alienation of a property in violation of an attachment order and a transfer of property in derogation of an injunction order. Section 64, C. P. C. clearly lays down that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein contrary to such attachment, shall be void as against all claims enforceable under the attachment. The same principle has no application to an injunction order. The injunction order is not a stay order. The matter has been fully discussed in AIR 1938 Lah 220, Lal Chand v. Sohan Lal. His Lordship observed that the effect of non-compliance with an injunction issued under Order 30, Rule 1 is to make the offender liable to the punishment prescribed in Order 39, Rule 2 (3) and a completed sale in contravention of an injunction under Order 39, Rule 1 is not a nullity as being without jurisdiction. A temporary injunction under Order 39 is not a mandatory direction to a Court, but is an order directed against a particular person.

4. On the aforesaid analysis, the sale in favour of the petitioners cannot be said to be a nullity. The petitioners must accordingly be accorded permission to be impleaded as defendants under Order 22, Rule 10 (1), C. P. C.

5. Mr. Mohanty contends that this prayer was not pressed before the Court below. The order of the learned Subordinate Judge does not indicate that the prayer was not pressed.

6. In the result, the order of the learned Subordinate Judge, so far as it rejected the prayer to allow the tenants of the petitioners to harvest the paddy, is confirmed. His order, whether it rejected or was silent, as to the impletion of parties is s,et aside. The petitioners are allowed to be impleaded as defendants. The Civil Revision is allowed to this extent. fn the circumstances, parties to bear their own costs.

7. It appears that on 8-12-65 interim stay was taken by the petitioners. That prayer regarding harvesting of the crop has now been abandoned by the petitioners. The learned Subordinate Judge is to make an enquiry, if a properly constituted application is filed before him, whether the petitioners removed the crop and were liable to deposit the same in Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //