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Venkatesa Tawker and ors. Vs. Ramasami Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad338
AppellantVenkatesa Tawker and ors.
RespondentRamasami Chettiar and anr.
Cases ReferredAppu v. Raman I.L.R.
Excerpt:
.....7. the question then is, is the injunction sought for in the present suit 'necessary to prevent a multiplicity of..........54 of the code of civil procedure as being opposed to section 56, clauses (a) and (b) of the specific relief act, no. i of 1877.3. hence this appeal by the plaintiffs, on whoso behalf it is contended (i) that the judge was wrong in dismissing the suit under section 54 of the code of civil procedure after it had been registered and written statement filed, and (ii) that the suit is not opposed to section 56 of the specific, relief act.4. in support of the first of these contentions we are referred to valiya kesava vadhyar v. suppannair i.l.r. 2 mad. 308 where it is stated:section 54 applies only to the initial stages of a suit before a plaint has been registered' and, again, 'the proceedings had passed the initial stage and section 54 of the civil procedure code was no longer.....
Judgment:

1. This suit was instituted in the District Court at Trichinopoly for an injunction restraining first defendant from executing a decree obtained by him against first and second plaintiffs, on the ground that the debt in question is included in a composition-deed executed by the general body of first and second plaintiff's creditors (including first defendant) appointing the other plaintiffs and second defendant trustees for the realization of the debtors' assets and payment of their debts, including the judgment-debt in question, in consideration of which all the debtors' assets were made over to the joint trustees.

2. The suit was dismissed by the District Judge under Section 54 of the Code of Civil Procedure as being opposed to Section 56, Clauses (a) and (b) of the Specific Relief Act, No. I of 1877.

3. Hence this appeal by the plaintiffs, on whoso behalf it is contended (i) that the Judge was wrong in dismissing the suit under Section 54 of the Code of Civil Procedure after it had been registered and written statement filed, and (ii) that the suit is not opposed to Section 56 of the Specific, Relief Act.

4. In support of the first of these contentions we are referred to Valiya Kesava Vadhyar v. Suppannair I.L.R. 2 Mad. 308 where it is stated:

Section 54 applies only to the initial stages of a suit before a plaint has been registered' and, again, 'the proceedings had passed the initial stage and Section 54 of the Civil Procedure Code was no longer applicable.' The suit then in question was, however, held to have been rightly dismissed under Section 10 of the Court Fees Act. The remarks with reference to Section 54 may therefore be treated as mere obiter dicta. Moreover, it does not appear that the decision to the contrary in Chetti Gaundan v. Sundaram Pillai 2 M.H.C.R. 51 was brought to the notice of the learned Judges who heard the case of Valiya Kesava Vadhyar v. Suppannair I.L.R. 2 Mad. 308 Both the above cases were considered in the more recent case of Kishore Singh v. Sabdal Singh I.L.R. 12 All. 553 where in it was decided that Section 54 of the Code of Civil Procedure 'is capable of being, and is intended to be, applied at any stage of the suit.' With this opinion and the reasoning on which it rests we concur. The first objection is therefore disallowed.

5. As to the second contention, it is urged on behalf of appellants that Section 56 of the Specific Relief Act does not apply, as the injunction asked for is 'against the defendant personally' and in support of this contention we are referred to Dhuronidhur Sen v. The Agra Bank I.L.R. 5 Cal. 86. That case is, no doubt, authority for distinguishing between a suit to set aside an order and a suit to restrain defendants from enforcing the order. But it is clearly no authority for the proposition that the injunction referred to in Section 56 of the Specific Relief Act is an injunction to the Court and not to the party. In fact the Specific Relief Act is not even referred to in that judgment, nor, as far as can be seen, was it referred to in the arguments. The decision of this Court in Appu v. Baman I.L.R. 14 Mad. 425 seems to favour the distinction relied upon by the plaintiff; but even in that case the decision proceeded on the ground that the effect of the injunction granted was 'to prevent the appellants from applying for execution of the decree 'and it is added' no application for execution has yet been made and so long as the injunction is in force none can be made and therefore no pending proceeding of a Court is restrained by the injunction.' This is quits consistent with Clause (a) of Section 56 of the Specific Relief Act, which provides against the grant of an injunction to stay a judicial proceeding 'pending at the institution of the suit in which the injunction is sought,' unless such restraint is necessary to prevent a multiplicity of proceedings.

6. With reference to the remarks in Appu v. Raman I.L.R. 14 Mad. 425 it is, however, as well to notice here that the injunctions issued by the Courts of Chancery in England for controlling proceedings in other suits are not orders issued to such other Courts but to the party, such party being amenable to the jurisdiction of the Court granting the injunction, and capable of being acted on by the process of contempt of Court and they are in fact orders in personam,

7. The question then is, is the injunction sought for in the present suit 'necessary to prevent a multiplicity of proceedings?' It is difficult to see how it is necessary for such purposes more than in any ordinary case in which execution of the decree is resisted.

8. It is also impossible to say that the Judge is wrong in holding this suit to be in contravention of Clause (b) of Section 56, as the proceedings sought to be stayed are proceedings in his own Court and not in a Subordinate Court. Such being the case, it is unnecessary to consider the question whether this suit is barred by Section 244 of the Code of Civil Procedure.

9. The appeal fails therefore and is dismissed with costs.


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