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Murugesa Mudali Vs. Angamuthu Mudali - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1938Mad190; (1937)2MLJ888
AppellantMurugesa Mudali
RespondentAngamuthu Mudali
Cases ReferredNasarvanji v. Shahajadi Begam I.L.
Excerpt:
- - but i see no justification for holding that the taking of delivery in those circumstances will amount to a disobedience of an injunction punishable under order 39. if i were satisfied that even after 3-30 p......code and section 151. this came on for orders some time after 2 p.m. on the 11th and the district munsiff passed an order ' notice and interim stay '.3. the trouble in this case arises from the informal terms of the order on the injunction petition. a reference to appendix f, form no. 8 of the civil procedure code will show how temporary injunctions are expected to be framed. the order actually served on the petitioner does not correspond to the terms of form no. 8. it stated that an order of interim stay had been passed in respect of the execution of the decree in o.s. no. 982 of 1928 and proceeded to add that the petitioner was accordingly bound not to do so. it is common, ground that even before 2 p.m. on the 11th some portions of the building on the site in question had been.....
Judgment:

Varadachariar, J.

1. This revision petition arises out of an application to punish the petitioner for disobedience of an injunction issued by the District Munsiff's Court at Ranipet. It will be convenient to describe the parties with reference to their array here.

2. The petitioner had obtained a decree against one Kadirvelu Mudali, in O.S. No. 982 of 1928, for vacant possession of a piece of land on which part of a building stood. When the decree-holder went to take possession, he was resisted by the present respondent and M.P. No. 618 of 1932 was accordingly filed for removal of obstruction. An order for removal of obstruction was passed on 10th October, 1932 and it is agreed that early on the 11th of October the Amin, to whom the warrant to carry out that order had been entrusted, went to the locality which is about two miles from the Court premises to carry out that order. The evidence also shows that the petitioner was present during the time that the Amin was carrying out that order. On the 11th itself the respondent, against whom the order on M.P. No. 618 of 1932 had been passed, instituted O.S. No. 414 of 1932 apparently under Order 21, Rule 103 and on the same day he filed M.P. No. 1666 of 1932 for an order restraining the defendant by a temporary injunction from executing the decree in O.S. No. 982 of 1928 and thereby demolishing the building and taking possession of the same until disposal of the suit. The petition purported to be under Rules 1 and 2 presumably of Order 39, Civil Procedure Code and Section 151. This came on for orders some time after 2 P.M. on the 11th and the District Munsiff passed an order ' notice and interim stay '.

3. The trouble in this case arises from the informal terms of the order on the injunction petition. A reference to Appendix F, Form No. 8 of the Civil Procedure Code will show how temporary injunctions are expected to be framed. The order actually served on the petitioner does not correspond to the terms of Form No. 8. It stated that an order of interim stay had been passed in respect of the execution of the decree in O.S. No. 982 of 1928 and proceeded to add that the petitioner was accordingly bound not to do so. It is common, ground that even before 2 P.M. on the 11th some portions of the building on the site in question had been demolished and it is also admitted by the petitioner that at about 6 P.M. that, evening he took formal delivery in terms of the receipt filed in this case. There was some question raised as to when the order of injunction was served on the petitioner, but I see no reason for not accepting the finding of the District Court that it must have been served upon him between 3 and 3-30 P.M. The learned District Judge himself finds that after service of this notice the petitioner must have gone to his vakil at Ranipet and taken his advice as to the further course to be followed. It also appears from the evidence that even during the petitioner's absence, as the petitioner's vakil in the main case was present when the temporary injunction petition came on for orders before the District Munsiff at 2 P.M., the District Munsiff orally informed the petitioner's vakil of the order that he was passing. It may therefore be presumed, as stated by the District Munsiff, that when the petitioner went to consult his vakil, the vakil would have advised him not to disobey the injunction. I do not therefore see sufficient reason to think that any demolition was likely to have taken place after the service of the order upon the petitioner.

4. The District Munsiff however thought that the passing of the receipt of delivery and the act of taking delivery therein implied amounts to a ' technical ' breach of the injunction and curiously he added that it was significant that the petitioner went to the scene even on the next day, as though that will amount to a breach of the injunction. As in his view, the disobedience was only technical, he directed that the petitioner should be imprisoned for a week. The learned Judge on appeal disagreed with the view that the disobedience was only technical, but I cannot help thinking that the learned Judge has been carried away by his opinion that even apart from the injunction the act of demolition was high-handed and unauthorised from beginning to end, because he thought that the order passed on M.P. No. 618 of 1932 did not warrant it. It is unnecessary for me to canvass the correctness of this conclusion, because that is not a matter that arises for consideration in this proceeding. We have only got to see whether there has been any disobedience of the injunction said to have been passed in M.P. No. 1666 of 1932.

5. I am unable to agree with the view that the taking of delivery implied in the passing of the delivery of receipt is punishable as an act of disobedience of the injunction. Order 39, Rule 1, Civil Procedure Code, contemplates an injunction being granted only to prevent any property being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree. This certainly would not include the mere act of taking possession in execution of a decree. I am aware it has been sometimes held that 0.39, Rules 1 and 2 are not exhaustive of the Court s power to grant a temporary injunction-see Vidyapuma Thirthaswamy v. The Vicar of Suratkal Church (1917) 7 L.W. 328 Adaikkala Thevan v. Imperial Bank, Madura Branch (1925) 50 M.L.J. 401 and Kanshi Ram v. Sharaf Din (1922) 73 I.C. 909. A different view was taken in Nasarvanji v. Shahajadi Begam I.L.R (1922) 46 Bom. 939 and I must add that the cases which held that Order 39 is not exhaustive do not seem to have given due weight to the words 'if it is so prescribed' recurring in the opening paragraph of Section 94 of the Code. 'Prescribed' in that section undoubted means 'prescribed by the rules'. Whatever may be said as to the power of the High Court to issue injunction for other purposes and to punish disobedience thereof in exercise of its own inherent power as a Court of record, the power of Subordinate Courts must be found within the four corners of the Code and it seems to me too much to suggest that, when the Code has expressly dealt with injunctions in Order 39, Section 151 can be invoked to add to the powers thus conferred. I do not however discuss this question further because, even assuming for the sake of argument that the Court has such power, I have still got to see what the order in this case was and whether there was any reason for the petitioner to assume that the Court granted an injunction wider in scope than Order 39, Rule 1 contemplates.

6. As I have stated already, the Court's order merely stated 'interim stay' and the notice actually served on the petitioner did not make matters clearer. Whether a delivery taken after an order of that kind will not be void in law is another matter; but I see no justification for holding that the taking of delivery in those circumstances will amount to a disobedience of an injunction punishable under Order 39. If I were satisfied that even after 3-30 P.M. on the 11th October, the petitioner was a party to any further demolition, I should not have hesitated to deal with him as he deserved. But though the respondent alleged and sought to prove that the demolition continued up to 10 P.M. that night and even for a part of the next day, neither Court has accepted that version, and both the Courts have based the order against the petitioner only on the ground that he took delivery after service of the injunction order. I am unable to hold that this conduct of the petitioner will amount to a breach of the injunction. On this ground, I set aside the order of the Courts below, but as the petitioner has undoubtedly acted in haste and has been in some degree responsible for bringing about this situation, I make no order as to the costs of this Civil Revision Petition.


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