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Somasundara Mudali and ors. Vs. Thiruppathuran Alias Nagappa Mudali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)2MLJ551
AppellantSomasundara Mudali and ors.
RespondentThiruppathuran Alias Nagappa Mudali and ors.
Cases ReferredIn Ram Prasad Singh v. The Benares Bank
Excerpt:
- - 3. clearly, when an injunction is directed by a court upon an exarte application notice of that order must be served upon the respondent, in order that he should be apprised of the injunction passed against him. 260 it was observed in the judgment of the division bench that the respondent had full knowledge of an injunction passed from the fact that his vakil had unsuccessfully opposed it and was present when it was ordered. i wish it to be made perfectly clear that the opinion which i have expressed relates only to an order for injunction passed in the presence of the party or his counsel......the issue of a final injunction, even though batta had already been paid after the issue of an interim injunction. the above report is found in (1932) 36 l. w. page 48 of the summary of recent cases. unfortunately, the record in the c.m.p. is not.now available in the office.3. clearly, when an injunction is directed by a court upon an exarte application notice of that order must be served upon the respondent, in order that he should be apprised of the injunction passed against him. in such circumstances, the party in whose favour the order is made, is required, and rightly so, by the office to pay the necessary amount for batta. when the application itself is heard by the court in the presence of counsel, not only for the applicant but also for the respondent, and an order is made,.....
Judgment:

Frederick William Gentle, C.J.

1. This matter comes before us upon a reference by Rajamannar, J., of a point to the Chief Justice for consideration by a Bench. The point is a short one and is as follows : When an application is made ex park by an appellant in an appeal for an injunction restraining the respondent from doing some act pending the disposal of the appeal and the Court grants are interim order of injunction until disposal of the application, and upon the hearing of the application the injunction is confirmed or continued until disposal of the appeal, whether batta can be demanded in addition to the batta which was paid upon the passing of the interim order.

2. It would seem that on the 19th October, 1932, Bardswell, J., in C.M.P. No. 1431 of 1932 expressed the opinion that fresh batta is payable upon the issue of a final injunction, even though batta had already been paid after the issue of an interim injunction. The above report is found in (1932) 36 L. W. page 48 of the Summary of Recent Cases. Unfortunately, the record in the C.M.P. is not.now available in the office.

3. Clearly, when an injunction is directed by a Court upon an exarte application notice of that order must be served upon the respondent, in order that he should be apprised of the injunction passed against him. In such circumstances, the party in whose favour the order is made, is required, and rightly so, by the office to pay the necessary amount for batta. When the application itself is heard by the Court in the presence of counsel, not only for the applicant but also for the respondent, and an order is made, it is then that exception is taken to a fresh demand being made for additional batta for service of the injunction continued or confirmed. at the hearing of the application itself.

4. In regard to the present matter, reference to one or two authorities is instructive. In Pkhuvaiyangar v. Oliver I.L.R.(1902) Mad. 260 it was observed in the judgment of the Division Bench that the respondent had full knowledge of an injunction passed from the fact that his vakil had unsuccessfully opposed it and was present when it was ordered. The report goes on to deal with further knowledge from a telegram sent subsequent to the hearing. In Ram Prasad Singh v. The Benares Bank, Ltd. I.L.R. (1919) All. 98 in the course of the judgment, the following is found at pages 106 and 107 of the report:

It is contended that this Court's injunction of 9th of December, 1918, is ineffective for want of personal notice on Ram Prasad Singh.

And later,

The prohibitory order was passed in open Court; it may not technically have the effect of a decree, but it was passed in the presence of both parties duly appearing before the Court, and it takes effect from the date of its delivery, just as much as a permanent injunction embodied in a judgment and incorporated in a decree of the Court.

5. From these authorities it is manifest that when an order of injunction is passed by a Court in the presence either of the respondent himself or of counsel appearing on his behalf, the respondent is aware of the injunction, and there is no necessity for formal notice to be given of the Court's direction. With respect, I agree with the views expressed in the two authorities to which reference has been made. It is unnecessary to cite any other authority. In my view, in light of the authorities, it is not incumbent upon a party, in whose favour an injunction, by way of continuance or confirmation of a previous interim injunction, is granted, to pay batta to effect service of notice of the order of continuance or confirmation, when the order is passed in the presence either of the party himself or of his counsel, inasmuch as the party himself has full knowledge of the Court's order and he must abide by it. I would, however, add that if any party wishes, by way of abundant caution, to have service of the second order of confirmation or continuance effected upon the party, in that event he must pay the batta which the office of the Court demands from him. I wish it to be made perfectly clear that the opinion which I have expressed relates only to an order for injunction passed in the presence of the party or his counsel. It does not relate to an order ex parte in the absence of the one who will, if the order is made, be obliged by the direction given by the Court.

Tyagarajan, J.

6. I agree.


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