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Kunhukuttan Nair Vs. Subakumaran and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberC.M.A. No. 32 of 1958
Judge
Reported inAIR1959Ker45
ActsCode of Civil Procedure (CPC) , 1908 - Sections 94 and 151 - Order 39 Rule 1, 1(1) and 2
AppellantKunhukuttan Nair
RespondentSubakumaran and ors.
Appellant Advocate K.P. Ramunni Menon,; K.P. Gopalankutty Menon and; T.L. V
Respondent Advocate N. Sundara Iyer,; V.R. Venkitakrishnan and; K. Narayanan
DispositionAppeal allowed
Cases ReferredInayat Ullah v. Guvdit Singh
Excerpt:
.....overruled]. - section 94(c) of the code says that, if it is so prescribed, the court may, in order to prevent the ends of justice from being defeated, grant a temporary injunction......on 18-10-1957 the plaintiff came forward with the present application stated to be under order xxxix, rule 1, c.p.c. praying for a temporary injuction to restrain the 5th defendant auction-purchaser from taking delivery of the property. this application having been allowed, the 5th defendant has come up on appeal.3. now, as we have said, the application is under order xxxix, rule 1, c.p.c., and in granting it the court below has purported to act under that rule. it is clear that clause (b) of that rule cannot apply, and so far as clause (a) is concerned it is not the case that the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit. that the effect of the delivery will be to deprive the plaintiffs of such possession as they have through.....
Judgment:

P.T. Raman Nayar, J.

1. We think that this appeal against the grant of a temporary injunction has to be allowed on the short ground that the Civil Procedure Code does not authorise the grant of an injunction in the circumstances of the case.

2. The suit in which the injunction has been granted was one instituted by the three sons of the, manager of a joint Hindu family governed by the principles of Mitakshara law. It was partition of their three-fourths share in the joint family. The suit was filed on 16-10-1957, hut the entire property had already been sold on 16-9-1957 in execution of a mortgage decree against the father in his capacity as manager of the family. The sale was confirmed on 20-10-1957.

The suit was on the footing that the decree and the sale did not bind the plaintiffs since the mortgage debt incurred by their father was an avyavaharika debt and the decree-holder and auction purchaser were made parties to the suit being impleaded as defendants 3 and 5 respectively. On 18-10-1957 the plaintiff came forward with the present application stated to be under Order XXXIX, Rule 1, C.P.C. praying for a temporary injuction to restrain the 5th defendant auction-purchaser from taking delivery of the property. This application having been allowed, the 5th defendant has come up on appeal.

3. Now, as we have said, the application is under Order XXXIX, Rule 1, C.P.C., and in granting it the Court below has purported to act under that rule. It is clear that Clause (b) of that rule cannot apply, and so far as Clause (a) is concerned it is not the case that the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit. That the effect of the delivery will be to deprive the plaintiffs of such possession as they have through their father is not to waste, damage or alienate the property, and the only question then is whether the property is in danger of being wrongfully sold in execution of a decree.

But the sale in execution had already taken place when the application was made, and it had even been confirmed before the application was ordered. There was therefore nothing left for the Court to restrain by a temporary injunction, and we are not impressed with the argument which seems to have found favour with a single Judge of the Lahore High Court in Inayat Ullah v. Guvdit Singh, AIR 1930 Lah 850, on which decision the Court below has based its order, that delivery of possession is part of the sale and that the sale cannot be held as complete until possession is delivered. Delivery of possession is no more an ingredient of a Court sale than, of a private sale.

The sale is complete and title passes as soon as the bid is accepted, subject no doubt to its being determined by cancellation of the sale under the provisions of Rules 89, 90 and 91 of Order XXI of the C.P.C., and the sale becomes absolute when it is confirmed under Rule 92 of that order.

4. We might draw attention to the fact that in the Travancore- Cochin version of Order XXXIX, Rule 1 (a), the words 'are delivered' have been inserted after the words 'wrongfully sold', so that under that rule an injunction can be granted to restrain delivery after a sale has been effected. But those words, 'are delivered' do not appear in the Madras version of the rule, which is the version that applies since this case arises from 'the Malabar area; and that being so, we are clear that no injunction can be granted under that rule to stay delivery once a sale has been held.

5. It is not pretended that the case can he brought within Clause (b) of Rule 1, or under Rule 2 of Order XXXIX, and it is settled law that whatever might be the inherent powers of the Chartered High Courts, the powers of other Courts in these matters must be found within the four corners of the Code. Section 94(c) of the Code says that, if it is so prescribed, the Court may, in order to prevent the ends of justice from being defeated, grant a temporary injunction. 'Prescribed' means prescribed under the rules in the first schedule, & when these rules in the shape of Rules 1 and 2 of Order XXXIX prescribe under what conditions a temporary injunction can issue, it seems obvious that the inherent power under Section 151) of the Code to make such orders as may he necessary for the ends of justice cannot be invoked to grant a temporary injunction in a case where the conditions laid down in Rules 1 and 2 of Order XXXIX do not obtain.

6. We allow the appeal with costs. The temporary injunction granted by the Court below is setaside.


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