Skip to content


Madan Mohan Vs. Revti Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 25 and 26 of 1977
Judge
Reported inAIR1977Raj191; 1977()WLN70
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 39, Rule 1; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantMadan Mohan
RespondentRevti Prasad and anr.
Appellant Advocate N.M. Kasliwal, Adv.
Respondent Advocate P.D. Mathur and; M.M. Tewari, Advs. for Respondent No. 1
DispositionPetition allowed
Cases Referred and M.L. Sethi v. R.P. Kapur
Excerpt:
.....of suit property and balance of convenience in his favour first appellate court set aside order of temporary injunction on ground that court cannot restrain execution of a decree by a court held, order of first appellate court in erroneous.;the first appellate court in the present case fraud that the plaintiff was in possession of the suit property. there is nothing to show not there is any finding recorded by the first appellate court that even prima facie the possession of the plaintiff was on behalf of the judgment debtor-tenants or that he was in collusion with them. it was also found by the lower court that the balance of convenience lay in favour of the plaintiff in maintaining his continuity of possession. in these circumstances it appears that the first appellate court set aside..........executing his decree for ejectment obtained against the remaining respondents, an application for temporary injunction was moved by the plaintiff. the trial court granted a temporary injunction, which was set aside on appeal by the learned additional district judge no. 2, jaipur city by his order dated january 29, 1977. the learned additional district judge agreed with the trial court on the question that the plaintiff continued to be in possession of the properties in question, but he concluded that the execution of a decree lawfully obtained could not be stayed by means of a temporary injunction, and on that basis it was held that the plaintiff was unable to prove a prima facie case.3. it is not in dispute between the parties that the ownership of the property in question vested in.....
Judgment:
ORDER

D.P. Gupta, J.

1. Learned counsel for the parties agree that both the revision applications may be heard together and as respondent No. 1 alone would be affected by the decision of these revision applications, they may be heard and disposed of without effecting service upon the remaining respondents.

2. In a suit for grant of a perpetual injunction restraining the defendant No. 1 from executing his decree for ejectment obtained against the remaining respondents, an application for temporary injunction was moved by the plaintiff. The trial court granted a temporary injunction, which was set aside on appeal by the learned Additional District Judge No. 2, Jaipur City by his order dated January 29, 1977. The learned Additional District Judge agreed with the trial court on the question that the plaintiff continued to be in possession of the properties in question, but he concluded that the execution of a decree lawfully obtained could not be stayed by means of a temporary injunction, and on that basis it was held that the plaintiff was unable to prove a prima facie case.

3. It is not in dispute between the parties that the ownership of the property in question vested in the idol of Shri Gor-dhan Nathji. The case of the plaintiff is that the father of Revti Prasad, respondent No. 1 had appointed one Grange Bux as a Pujari in the year 1913 for doing 'Sewa-Pooja' in the temple and by a subsequent document of the year 1923 all rights relating to the sheibaitship of the property were surrendered by him in favour of Ganga Bux and that after the death of Ganga Bux the plaintiff, being his nephew, came into possession of the properties belonging to the deity of Shri Gordhan Nathji, including the disputed property. The plaintiff also relied upon an order passed by the Sub-Divisional Officer fixing annuity in favour of Ganga Bux Madan Mohan. But the respondent No. 1 has produced a copy of the order of the Board of Revenue dated Sept. 11, 1975 by which the order regarding fixation of annuity has been set aside on the ground that it was passed without notice to Revti Prasad respondent No. 1 and the matter relating to the fixation of annuity has been remanded to the Deputy Collector (Jagir) for a fresh decision. The case of the respondent No. 1 is that Gangabux was appointed as a Pujari in the temple of Shri Gordhan Nathji by the grandfather of the defendant No. 1 in pursuance of the document dated February 2, 1913 but after some years Gangabux handed over the work of Sewa Pooja to his son-in-law Narsinglal and that a suit was filed by the defendant No. 1 against Narsinghlal which was decreed on November 30, 1972. According to the defendant No. 1, a suit for ejectment was filed against the tenants, who are the other respondents in the case, on the basis of rent-deed alleged to have been executed on September 24, 1968 and the decree passed in that suit was sought to be executed. It was at that stage that the present plaintiff came on the scene and objected to the execution of the decree for ejectment and when his objection was rejected by the executing court, the present suit was filed.

4. It is not necessary for me to enter into a detailed discussion regarding the facts of the case nor it would be proper at this stage to express any opinion in respect of any of the facts in dispute between the parties. The learned lower appellate court, on a perusal of the material on the record, came to the conclusion that prima facie it appeared that the plaintiff was in possession of the property in question belonging to the deity of Shri Gordhan Nathji and it appeared from the report of the Tehsildar that he had also given some of properties on rent from time to time. He further held that from the material placed on the record it is difficult prima facie to come to the conclusion that the plaintiff was the owner of the properties in question. It may be observed that in arriving at the aforesaid conclusion the learned first appellate court was labouring under a misconception, because as mentioned above, both the parties are agreed that the properties belonged to the deity of Shri Gordhan Nathji and the question of ownership of the properties does not appear to be in dispute. The lower appellate court, while holding that the plaintiff was prima facie in possession of the suit properties, refused to hold that there was a prima facie case in his favour merely on the ground that the execution of a lawful decree could not be stayed by a order of temporary injunction. In coming to that finding he relied upon the decisions in Hemant Kumar v. Ayodhya Prasad, AIR 1957 Madh B 95 and Mira Rani Das v. Forman AH, AIR 1971 Assam & Naga 157. In Hemant Kumar's case the appellant, who sought an injunction against the mortgagee-decree-holder, restraining the latter from bringing to sale the mortgaged property in execution of a mortgage decree against his father, would have been bound by the sale of the property, because being the son of the judgment-debtor he was under a pious obligation to pay off the mortgage debt of his father, even though he was not a party to the mortgage suit. It was on these facts that their Lordships of the Madhya Bharat High Court were pleased to observe that :--

'No order of injunction can be made under Order 39, Rule 1 or Rule 2 or under Section 151', Civil P. C. to restrain a decree-holder from executing a decree in his favour so long as it stands, and that merely because the plaintiff institutes a suit for a declaration that the decree is not binding on him and that he hopes to succeed in the suit, it cannot be held that the execution of the decree would amount to committing an injury.'

5. In Mira Rani Das's case AIR 1971 Assam & Naga 157 it was held that under Order 39, Rule 2, C. P. C. the execution of a lawful and subsisting decree could not be restrained by a temporary injunction, since its execution cannot be regarded as an 'injury' within the meaning of Order 39, Rule 2, C. P. C.

6. It may be pointed out here that in both the above mentioned cases, the decisions rested upon the language employed in Order 39, Rules 1 and 2, C. P. C., whereunder an order of temporary injunction can be issued in any suit for restraining the defendant from committing a breach of contract or 'other injury' of any kind. Now the provisions of Order 39, Rule 1, C. P. C. have recently been amended by the Civil Procedure Code Amendment Act (Act No. 104 of 1976) by the inclusion of Clause (c) therein to the following effect:--

'(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to anyproperty in dispute in the suit.'

7. Obviously this amendment has been made for the purpose of including within the purview of the provisions of Order 39, Rule 1, C. P. C. such suits where the defendant threatens to dispossess the plaintiff or otherwise cause any injury to the plaintiff in relation to any property in dispute in such suits. It appears that the legislature felt that such a suit should also be covered by the provisions of Order 39, Rule 1, C. P. C. and by the inclusion of Clause (c) in Order 39, Rule 1, C. P. C. maintenance of status quo in respect of possession of immovable property could also be one of the circumstances in which a civil court may be entitled to issue a temporary injunction under that provision.

8. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 their Lordships of the Supreme Court clearly held that a civil court had jurisdiction to issue a temporary injunction under its inherent powers under Section 151, C. P. C., even in circumstances Which were not covered by the provisions of Order 39, C. P. C. Thus even before the aforesaid amendment was introduced in the Civil P. C., by the Amending Act No. 104 of 1976, a temporary injunction for maintaining status quo relating to possession of immovable property could have been issued in a proper case although not under the provisions of Order 39, Rules 1 and 2, C. P. C. but under the inherent powers of the court under Section 151, C. P. C., as held by their Lordships of the Supreme Court in Manoharlal Chopra's case.

9. In Narayanrao Marotirao v. Waman Nathuji, AIR 1974 Bom 319 a learned Judge of the Bombay High Court disagreed with the view taken by the Assam High Court in Upendra Chandra v. Nabin Chandra, AIR 1971 Assam & Naga 95 and held that a court would not loose jurisdiction to issue a temporary injunction merely if it was shown that the defendant had obtained an earlier decree and was proceeding to execute the same. Relying upon the decision of their Lordships of the Supreme Court in Manoharlal Chopra's case AIR 1962 SC 527 it was held in Narayanrao's case that in a proper case the court had full jurisdiction to grant relief by way of temporary injunction, although the case may not come within the four corners of the provisions of Order 39, C. P. C. What should be the real meaning of the word 'injury' employed in Order 39, Rule 2, C. P. C. would not, therefore, be, necessary now, as their Lordships of the Supreme Court have held in Manohar Lal Chopra's case that the civil court is empowered to issue a temporary injunction under its inherent powers under Section 151, C. P. C. even in those cases which do not squarely fall within the ambit of Order 39, Rules 1 and 2, C. P. C. Further it is much less necessary now to consider that aspect of the matter in view of the recent amendment of Order 39, Rule 1, C. P. C. by the Amending Act No. 104 of 1976, introducing Clause (c) in that provision.

10. Thus the view taken by the learned lower appellate court that the civil court had no jurisdiction to issue a temporary injunction in any case, restraining the execution of a decree lawfully obtained does not appear to be well founded. The first appellate court in the present case found that the plaintiff was in possession of the suit property. There is nothing to show nor there is any finding recorded by the first appellate court that even prima facie the possession of the plaintiff was on behalf of the judgment-debtor-tenants or that he was in collusion with them. It was also found by the lower court that the balance of convenience lay in favour of the plaintiff in maintaining his continuity of possession. In these circumstances it appears that the first appellate court set aside the order of temporary injunction passed in the suit by the trial court merely on the ground that the court had no jurisdiction to grant a temporary injunction restraining the execution of a decree of a court lawfully obtained. This decision is erroneous, as I have already held above.

11. In the present case, the lower appellate court has failed to exercise its jurisdiction or has exercised the same illegally or with material irregularity because of an erroneous decision on the question of jurisdiction of the civil court to issue a temporary injunction in such matters. Mr. Mathur submitted that an erroneous decision on a question of law cannot attract the revisional jurisdiction of this Court and he referred to the decisions of their Lordships of the Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, AIR 1973 SC 76; Pandurang Dhondi v. Maruti Hari Jadhav, AIR 1966 SC 153; Municipal Corporation of Delhi v. Suresh Chandra, AIR 1977 SC 2621 and M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379. There is no doubt that this Court enjoys a limited jurisdiction of entertaining revision petitions which is circumscribed by the provisions of Section 115, C. P. C. and a decision of a civil court, which has jurisdiction, on a question of fact or law howsoever erroneous it might be, cannot be interfered with by this Court in its revisional jurisdiction. But as I have already observed above, the erroneous decision arrived at by the learned lower appellate court in the present case related to the question of jurisdiction of a civil court to issue a temporary injunction to restrain the execution of a decree lawfully obtained and it cannot be said that the aforesaid decision was one relating merely to a question of law which had no bearing on the jurisdiction of the court to issue a temporary injunction. The erroneous decision of law in the present case has led the lower appellate court to exercise its jurisdiction illegally or at least with material irregularity. In this view of the matter the order passed by the lower appellate court deserves to be interfered with by this Court in its revisional jurisdiction under Section 115, C. P. C.

12. The revision applications are, therefore, allowed. The orders passed by the learned Additional District Judge No. 2, Jaipur City are set aside and the orders passed by the trial court are restored.


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