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Karuppayya Nadar Through His Authorised Agent Ratnasami Nadar Vs. Ponnuswami Nadar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad500; (1933)64MLJ112
AppellantKaruppayya Nadar Through His Authorised Agent Ratnasami Nadar
RespondentPonnuswami Nadar and anr.
Cases ReferredSingaravelu Mudali v. Balasubramania Mudalt
Excerpt:
.....the code in issuing such injunction. by section 20, in the exercise of its extraordinary original civil jurisdiction, it can apply to a case the law or equity and rule of good conscience which would have been applied to such case by any local court having jurisdiction therein; while under section 21, which governs the case under notice, it has to apply to any case that comes before it in the exercise of its appellate jurisdiction, of which revisional jurisdiction forms a part, the law or equity and rule of good conscience which the court in which the proceedings in such case were originally instituted ought to have applied to such case. if, then, the high court deals, as appellate or revisional authority, with a case coming from a mofussil court, it can only apply such law or equity and..........which it can apply such law or equity are cases arising in the exercise of its ordinary original civil jurisdiction. by section 20, in the exercise of its extraordinary original civil jurisdiction, it can apply to a case the law or equity and rule of good conscience which would have been applied to such case by any local court having jurisdiction therein; while under section 21, which governs the case under notice, it has to apply to any case that comes before it in the exercise of its appellate jurisdiction, of which revisional jurisdiction forms a part, the law or equity and rule of good conscience which the court in which the proceedings in such case were originally instituted ought to have applied to such case. now, if a high court cannot grant an injunction under the terms of the.....
Judgment:
ORDER

Bardswell, J.

1. The petitioner is the defendant in O.S. No. 57 of 1931 on the file of the Principal Subordinate Judge of Ramnad at Madura. A decree was passed against the petitioner ex parte. He then applied for the setting aside of that decree and it was ordered that it should be set aside if he gave security for the suit amount and costs within three weeks. The order as to this was passed on 12th March, 1932, and a draft security bond was filed on 15th March, 1932. The report of the Amin as to the sufficiency of the security was not received within the three weeks' time allowed for furnishing security, and so an application (I. A. No. 170 of 1932) was made for extending the time but, after notice had been given to the other side, the learned Subordinate Judge held, on 8th July, 1932, that the security had not been furnished within the time allowed and that it was not competent for him to extend the time, and dismissed the application. In the meantime, according to the petitioner's affidavit, the Amin had reported that the security offered was sufficient. Against this order on I.A. No. 170 of 1932 the petitioner has come up on revision.

2. The petitioner at first filed C. M. P. No. 3428 of 1932 praying for stay of execution of the decree in O.S. No. .57 of 1931 pending the disposal of the revision petition. This petition I am dismissing because there was no appeal against, or even petition for revision of, the decree in that suit. Subsequently the present petition has been filed, praying for an injunction restraining the respondents-plaintiffs from executing the decree in the said suit pending disposal of the revision petition.

3. It is objected that no injunction can be granted in this case. It is not a case that falls under either Rule 1 or Rule 2 of Order 39, Civil 'Procedure Code and it has been held by this Court in Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85 and Ayyaperumal Nadar v. Muthuswami Pillai (1927) 26 L.W. 899 that the High Court has no power to grant an injunction under its inherent powers in cases not governed by Order 39. These decisions I have myself recently had occasion to follow in C. M. P. No. 3349 of 1932. That this is a correct view of the law, as far as it is contained in the Civil Procedure Code, is not denied by the learned Advocate for the petitioner, but he contends that, apart from the Code, this Court has extraordinary powers of granting injunctions, which powers it derives from the Supreme Court. He relies on the decision of Curgenven, J., in Govindarajulu Nayudu v. Imperial Bank of India, Vellore (1931) 35 L.W. 168. In that case the learned Judge, in dealing with a prayer for an injunction to restrain from the execution of a decree during the pendency of an appeal against an order of the Subordinate Judge of Vellore, held that the High Courts possess, over and above the powers which they enjoy under the Civil Procedure Code, an equitable jurisdiction, derived from the old Supreme Court, to issue an injunction in appropriate cases and are not bound by the terms of the Code in issuing such injunction. For the respondents it is urged that the learned Judge has not considered the provisions of the Letters Patent to which, indeed, as far as can be seen from his decision, his attention was not drawn. Emphasis is now laid on those provisions. It is only under Section 19 of the Letters Patent that a chartered High Court can administer the law and equity that would have been applied by such High Court if the Letters Patent had not been issued, and the cases in which it can apply such law or equity are cases arising in the exercise of its ordinary original civil jurisdiction. By Section 20, in the exercise of its extraordinary original civil jurisdiction, it can apply to a case the law or equity and rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein; while under Section 21, which governs the case under notice, it has to apply to any case that comes before it in the exercise of its appellate jurisdiction, of which revisional jurisdiction forms a part, the law or equity and rule of good conscience which the Court in which the proceedings in such case were originally instituted ought to have applied to such case. Now, if a High Court cannot grant an injunction under the terms of the Civil Procedure Code otherwise than in accordance with Order 39, it is certain that neither can a mofussil Court do so; and it is also certain that no mofussil Court exercises powers derived from the Supreme Court. If, then, the High Court deals, as appellate or revisional authority, with a case coming from a mofussil Court, it can only apply such law or equity and rule of good conscience as would be applied by that mofussil Court, and from this it follows that it can only grant an injunction in respect of such a case in accordance with the provisions of Order 39.

4. Curgenven J. has referred in Govindarajulu Nayudu v. Imperial Bank of India, Vellore (1931) 35 L.W. 168 to two Calcutta cases, Rash Behary Dey v. Bhowani Churn Bhose I.L.R. (1906) 34 Cal. 97 and Mungle Chand v. Gopal Ram I.L.R. (1906) 34 Cal. 101, respectively. But in each of those cases the Calcutta High Court, when it held that it had powers, under its general equity jurisdiction, to grant an injunction independently of the Code of Civil Procedure, was acting in the exercise of its ordinary original civil jurisdiction. The learned Judge has also referred to Periakaruppan Chettiar v. Ramasami Chettiar (1928) 27 L.W. 418, which was decided by a divisional bench of this Court. In that case the learned Judges held that the chartered High Courts have power to restrain by injunction a party from prosecuting a suit in a foreign Court (though within the British Empire), but they have not, as far as I understand the decision, held that such power can be used in the exercise of appellate or revisional jurisdiction in cases arising from Courts in the mofussil, and they certainly did not make use of such a power. What happened was that they doubted whether such a power could be exercised by a Subordinate Court, and then, dealing with the facts of the case, which was one that came before them on an appeal from a Subordinate Judge, on the assumption that a Subordinate Court had such power, held that the Subordinate Judge was not warranted in making use of it. The result was that an injunction which the Subordinate Judge had granted was discharged, the petition praying for it being dismissed. In these circumstances I do not think that the decision is an authority for the High Court's having power to grant an injunction in a case that comes before it, on appeal or revision, from a Subordinate Court in the mofussil. Were it such an authority, I should, of course, be obliged to follow it. I would note that none of the decisions to which it has referred as to the High Court having authority, outside what is provided for in the Civil Procedure Code, to grant an injunction, has to do with cases in which the High Court was not exercising its ordinary original civil jurisdiction. Two of them are the decisions in I.L.R. 34 Calcutta, to which I have already referred. Another is that in Uderam Kesaji v. Hyderally I.L.R. (1908) 33 Bom. 469 in which however reliance was placed not only on powers inherited from the Supreme Court but also on inherent powers, with which I am not now concerned in the face of what is the view of this High Court in that connection. Another is Mulchand Raichand v. Gill & Company I.L.R. (1919) 44 Bom. 283 and another is Tikam Chand-Santokchand v. Santokchand Singhi (1920) 59 I.C. 218, which again is a decision of the Calcutta High Court. All these decisions have to do with cases in which a High Court was acting in the exercise of its ordinary original civil jurisdiction.

5. The other case referred to in Govindarajulu Nayudu v. Imperial Bank of India, Vellore (1931) 35 L.W. 168 is Singaravelu Mudali v. Balasubramania Mudalt (1926) 24 L.W. 421, in which the decision was by a single Judge, but in that case the injunction was found by the learned Judge to be one that could be brought within the terms of Order 39, Rule 2, and his other remarks were not necessary for the decision of the petition that was then before him. Nor has the learned Judge dealt with the provisions of the Letters Patent.

6. My conclusions are that there is no authority of this Court on the subject now before me which I am bound to follow and that, in the light of Section 21 of the Letters Patent, of which I find no discussion in any decision of this Court that has been brought to my notice, this is not a case in which this Court can grant an injunction. The petition is, therefore, dismissed with costs.


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