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Unnamalai Achi and anr. Vs. Umayal Achi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1968)2MLJ544
AppellantUnnamalai Achi and anr.
RespondentUmayal Achi and ors.
Cases ReferredAssociation v. Makhan Lal Ganguly I.L.R.
Excerpt:
- .....and that in order to enable the creditors to obtain rateable distribution (under section 73, civil procedure code), it will be necessary to allow time to creditors like unnamalai achi to obtain decrees and file execution petitions before the assets are received by the executing court. if they are not enabled to do so, ramaswami chetty alone would takeaway the entire amount due to him in execution of his decree and the claims of persons like unnamalai achi will be prejudiced. impliedly the affidavit proceeds on the assumption that the house in palangudi is the only property of murugappa chatty and that was explicitly stressed during arguments by unnamalai achi's learned counsel sri v.v. raghavan section 73(1), civil procedure which is relied on, so far as it is material, states.....
Judgment:
ORDER

K.S. Venkataraman, J.

1. One Unnamalai Achi filed a suit Original Suit No. 44 of 1966 on the file of the Court of the Subordinate Judge of Devokattai, againstone Murugappa Chetty for recovery of a sum of Rs. 26,560 on the basis that she had deposited a sum of Rs 21,136-50 with Murugappa Chetty repayable with compound interest. Murugappa Chetty died during the suit and defendants 2 to 5 were impleaded as his legal representatives. Defendants 3 and 4 allowed the suit to be decreed ex parte. The other two merely put the plaintiff to proof of the claim. The learned Subordinate Judge who tried the suit held against the plaintiff and dismissed the suit. Appeal Suit No. 416 of 1967 has been preferred by the plaintiff Unnamalai Achi against the four legal representatives.

2. In the meantime, one Ramaswami Chetty who obtained a decree in Original Suit No. 3 of 1965 on the file of the Court of the Subordinate Judge, Devakottai against the said Murugappa Chetty for a sum of over Rs. 25,000 on 25th January, 1965, filed Execution Petition No. 86 of 1965 for recovery of the amount by sale of the house of Murugappa Chetty in Palangudi in Ramanathapuram District.

3. Civil Miscellaneous Petitions Nos. 7599 and 7600 of 1967 have been filed by Unnamalai Achi against the said Ramasawami Chetty. Civil Miscellaenous Petition No. 7599 of 1967 is for an injunction restraining Ramaswami Chetty from selling the house in execution of the decree in Original Suit No. 3 of 1965 pending disposal of Appeal Suit No. 416 of 1967. Civil Miscellaneous Petition No. 7600 of 1967 is an application to implead the said Ramaswami Chety as a respondent in Appeal Suit No. 416 of 1967. The petitioner states in her affidavit that besides herself and the said Ramaswami Chetty, there are also other creditors of Murugappa, that the total debts due from the deceased Murugappa Chetty would be in the region of Rs. 80,000 that the house if sold in Court auction would fetch only about Rs. 50,000, that all the creditors would have to share the sale proceeds rateably and that in order to enable the creditors to obtain rateable distribution (under section 73, Civil Procedure Code), it will be necessary to allow time to creditors like Unnamalai Achi to obtain decrees and file execution petitions before the assets are received by the executing Court. If they are not enabled to do so, Ramaswami Chetty alone would takeaway the entire amount due to him in execution of his decree and the claims of persons like Unnamalai Achi will be prejudiced. Impliedly the affidavit proceeds on the assumption that the house in Palangudi is the only property of Murugappa Chatty and that was explicitly stressed during arguments by Unnamalai Achi's learned Counsel Sri V.V. Raghavan Section 73(1), Civil Procedure which is relied on, so far as it is material, states :

Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons.

The point which is emphasised is that the execution petition should be filed before the receipt of assets in the executing Court. For that purpose, Unnamalai Achi should first obtain a decree in Appeal Suit No. 416 of 1967. It is urged by her learned Counsel that the defendants in Original Suit No. 44 of 1966 did not adduce any evidence and that there is every probability of Appeal Suit No. 416 of 1967 being allowed. He prays that the hearing of the appeal may be expedited.

4. A temporary injunction was granted on 30th June, 1967 restraining Ramaswami Chetty, from proceeding with the execution. He has filed Civil Miscellaneous Petition No. 9140 of 1967 to vacate the injunction. He states in his counters-affidavit that it is a strange proposition of law that a creditor like him should wait till the other creditors like Unnamali Achi obtained decrees and filed execution petitions. He also states that there are other properties of the judgment-debtor from which Unnamalai Achi could recover her alleged dues. He also stresses the fact that he is neither a necessary nor a proper party to Appeal Suit No. 416 of 1967 and that the application to implead him should also be dismissed.

5. Taking the position as it stands, Ramaswami Chetty is not a party in Appeal Suit No. 416 of 1967. In the case of such a person who is not a party, no injunction can be issued under Order 39, Civil Procedure Code. This is clear from the provisions of Order 39, Rules 1 and 2. The injunction is issued only temporarily pending disposal of the suit and the assumption is that the same question Will be tried in the suit concerning the party against whom the injunction is sought. Authorities are not necessary for this simple proposition. However, as authorities may be mentioned Balbir Prasad v. Jugul Kishore (1918) 46 IND.CAS. 473, Meston School Society v. Kashi Nath : AIR1951All558 , see also the other cases quoted in A.I.R. commentary under Order 39, Rule 1 under Note 13, and also Mulla's Civil Procedure Code, 1952 Edn. page 1154. Sri K. Parasaran,. learned Counsel for Ramaswami Chetty, has also cited the decision in Aboobucker v. Kunhamoo (1958) Mad. 5. (1962) 1 S.C.R.720, and State of Orissa v. Madan Goapl : [1952]1SCR28 , to show that where relief cannot be granted in the appeal itself against Ramaswami Chetty, a temporary injunction cannot be issued.

6. Further, the only provisions in Order 39, Rules 1 and 2 which can at all be invoked by Unnamalai Achi are that the property is dispute in the appeal is in danger of being wrongfully sold in execution of a decree, or that it is necessary to restrain Ramaswami Chetty from committing an injury against the plaintiff. Now it will be seen that the house in question is not in dispute in Appeal Suit No. 416 of 1967. That apart, it cannot possibly be said that Ramaswami Chetty is wrongfully seeking to sell it in execution of his decree. He is entitled to execute the decree and it is not disputed that it is the property of the judgment-debtor Murugappa Chetty. Similarly, it cannot be urged that Ramaswami Chetty will be committing any injury to Unnamalai Achi by proceeding with the execution of his decree; Ramaswami Chetty owes no duty to the plaintiff to wait till Unnamalai Achi obtains a decree and files an execution petition.

7. The point need not be laboured further because Sri V.V. Raghavan did not seriously contend that he could invoke the provisions of Order 39, Civil Procedure Code. But he urged that he could invoke the inherent powers of the Court under Section 151 Civil Procedure Code for issuing the injunction against Ramaswami Chetty. That provision says:

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

In support of this contention, Sri V.V. Raghavan relies on the majority decision of the Supreme Court in Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1962) 1 S.C.R.450. In that case, their Lordships point out that some High Courts have taken the view that in the matter of injunction, because of Section 94 (c), interim injunction could be granted by the Court only within the terms of Order 39, but that other High Courts have taken the view that an injunction could be granted in proper cases under Section 151, Civil Procedure Code also. Their Lordships held that in suitable cases injunction could be issued under Section 151, Civil Procedure Code.

8. In view of this decision, it cannot now be doubted that an injunction could be issued under Section 151, Civil Procedure Code in a suitable case, even though the case does not fall within the terms of Order 39, Rules 1 and 2 Civil Procedure Code. But it is obvious that this is not a proper case where an injunction could be issued under Section 151, Civil Procedure Code either. Turning to the wording of Section 151, Civil Procedure Code, this is not a case where it is necessary for the ends of justice to issue an injunction and it cannot be said either that Ramaswami Chetty is abusing the process of Court by executing his decree and that in order to prevent him, an injunction should be issued. The law permits Ramaswami to proceed with the execution and there is no rule or justice which can stand in his way. In fact, Section 73 ,Civil Procedure Code itself contemplates that he will become liable to share the assets realised in execution of his decree rateably with other persons only if the other persons have obtained decrees and filed execution petitions before the receipt of the assets in the executing Court. This clearly shows the intention of the Legislature on the point. It would be going contrary to the intention of the Legislature to issue an injunction preventing Ramaswami Chetty from executing his decree so as to enable Unnamalai Achi, and possibly others, to apply for rateable distribution under Section 73, Civil Procedure Code. Such an injunction would defeat the substantive rights of Ramaswami Chetty. It is worthy of note that their Lordships of the Supreme Court have indicated in the very decision relied on by Sri V.V. Raghavan that the issue of an injunction should not conflict with the express provisions of the Code or against the intentions of the Legislature and should not affect the substantive rights of the party against whom the injunction is issued. Thus at pages 461, 462, their Lordships say:

But these powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature.'

* * * *

'...The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it.

' These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure.

Sri V.V. Raghavan referred to the cases in which injunction was issued under Section 151, Civil Procedure Code and which were referred to with approval by the Supreme Court. They are Dhaneshwar Nath Tewari v. Ganshyam Dhar Misra I.L.R. (1940) All. 201, Becharam Baburam v. Baldeo Sahai Surajamal I.L.R. (1940) All. 232, Bhagat Singh Bugga v. Dewan Jagbir Sawhney I.L.R. (1941) Gal. 490, and The Chinese Tannery Owners' Association v. Makhan Lal Ganguly I.L.R. (1953) Cal. 11. But those cases are easily distinguishable. Thus, in Dhaneshwar Nath Tewari v. Ghanshyam Dhar Misra I.L.R. (1940) All. 201, the suit was by a reversioner against a person claiming to be the adopted son of the last male owner and a temporary injunction was issued against alienation and receipt of assets belonging to the deceased. In Becharam Babu Ram v. Baldeo Sahai Surajmal I.L.R. (1940) All. 232, contrary to the agreement between the parties that their disputes should be decided by the Court at Meerut (in United Province), one of the parties brought the suit in the Punjab and an injunction was issued restraining him. In Bhagat Singh Bugga v. Dewan Jagbir Sawhney I.L.R. (1941) Gal. 490, cross suits were brought in the Calcutta High Court and in the Gujranwala Sub-Court, near Lucknow. Sawhney, the defendant in the Calcutta suit, was restrained by an injunction from proceeding with the suit in Gujranwala on the ground that that suit had been instituted by him with the sole object of harassing Bhagat Singh Bugga when really it should have been instituted only at Calcutta. Section 151, Civil Procedure Code was relied on. Similarly in The Chinese Tannery Owners' Association v. Makhan Lal Ganguly I.L.R. (1953) Cal. 11, it was recognised that injunction could be issued in a proper case under Section 151, Civil Procedure Code but on the facts of that case injunction was not issued. The injunction issued by the Lower Court was cancelled.

9. Turning now to the prayer for impleading Ramaswami Chetty as a party in Appeal Suit No. 416 of 1967 it is obvious that he is neither a necessary nor a proper party within the meaning of Order I, Rule 10, Civil Procedure Code and his presence is not at all necessary for the determination of the point in controversy in Appeal Suit No. 416 of 1967. In fact, Sri V.V. Raghavan submitted that the application was filed in order to get over the objection that under Order 39, Civil Procedure Code an injunction could not be issued against a person not a party to the appeal. It is clear that on the principles which have been discussed already. Ramaswami Chetty cannot be impleaded and that an injunction cannot be issued under Section 151, Civil Procedure Code even if he could be impleaded as a party in Appeal Suit No. 416 of 1967. Civil Miscellaneous Petitions Nos. 7599 and 7600 of 1967 are accordingly dismissed with costs. The injunction already issued is vacated.


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