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Vadapalli Varadacharyulu Vs. Khandavilli Narasimhacharyulu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.615
AppellantVadapalli Varadacharyulu
RespondentKhandavilli Narasimhacharyulu
Cases ReferredJoshi Sahib Prakash v. Jhinguvia
Excerpt:
civil procedure code (act v of 1908), sections 94, 151, order xxxix, rules 1, 2 - injunction restraining execution of decree, whether can be granted--inherent power of court. - .....district judge.2. it is now contended that such an injunction will come under order xxxix, either rule 1 or rule 2. it certainly cannot come within the language of rule 1, for there is-no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated. it is then argued that rule 2 would be applicable and that this is ah injunction to restrain the defendant from committing 'other injury of any kind.' the alleged injury is the execution of a decree lawfully obtained. in order to hold that, that does constitute an injury, it is necessary to hold that, that decree is illegal, for, if the decree is legal, the defendant has every right to execute it and in doing so cannot be said to commit any injury.3. it is then argued that section 94,.....
Judgment:

Phillips, J.

1. This is a petition for revising an order of the District Court of Godavari refusing to grant an injunction restraining the execution of a decree obtained by the defendant against the plaintiff's father. The Subordinate Judge held that he had no jurisdiction to grant such an injunction and this view was upheld by the District Judge.

2. It is now contended that such an injunction will come under Order XXXIX, either Rule 1 or Rule 2. It certainly cannot come within the language of Rule 1, for there is-no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated. It is then argued that Rule 2 would be applicable and that this is ah injunction to restrain the defendant from committing 'other injury of any kind.' The alleged injury is the execution of a decree lawfully obtained. In order to hold that, that does constitute an injury, it is necessary to hold that, that decree is illegal, for, if the decree is legal, the defendant has every right to execute it and in doing so cannot be said to commit any injury.

3. It is then argued that Section 94, C.P.C., is wider than Order XXXIX and covers the present case, but I think that contention must be at once negatived in view of the language of the section which says 'in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,' that is to say, the Court is given power provided that, the rules make provision for the exercise of that power. The section is clearly governed by Order XXXIX which contains the rules prescribed.

4. A further contention is put forward that the injunction may be granted under the inherent powers of the Court under Section 151, C.P.C., and the petitioner relies on a, decision of the Lahore High Court Kanshi Ram v. Sharaf Din 73 Ind. Cas. 909 . The reason for holding this view is not very clearly stated in that judgment and it appears to be opposed to the principles adopted by a Full Bench : of this Court in Gadi Neelaveni v. Marappareddi Gari Narayana Reddi 53 Ind. Cas. 847 : 37 M.L.T. 377 : 10 L.W. 606 : (1920) M.W.N. 19; followed in Krishnasawmy Naidu v. Chengalroya Naidu 45 M. L.J. 813 : 33 M.L.T. 207 : A.I.R.(1924) (M.). 114 and in the case of Joshi Sahib Prakash v. Jhinguvia 78 Ind. Cas. 416 A.I.R. (1924)(A.). 446. The principle there laid down is that when the Code makes provision for a certain procedure the Code must be deemed to be exhaustive in that respect and the provisions of Section 151'cannot be invoked in opposition to these provisions., Here the Code lays down in Section 94 that the Court shall only have power if it is given by rules framed under the Code. It, therefore, seems to me impossible to hold that when rules have been framed to give the Court power, further power should be given by Section 151. If then the principle laid down in the Full Bench of this Court is correct and I see no reason to doubt its correctness, it is applicable to this case also, and the District Judge was right in his order.

5. I may add that from the facts put before me here, although they were not considered by the lower Courts, the petitioner does not seem to have much ground for his present complaint.

6. The petition is dismissed with costs.


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