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Palaniammal Vs. Pallipalayam Jamia Masjid Muthavalli S.M. Dawood, Pallipalayam, Tiruchengode Tk. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ147
AppellantPalaniammal
RespondentPallipalayam Jamia Masjid Muthavalli S.M. Dawood, Pallipalayam, Tiruchengode Tk. and anr.
Cases ReferredCohen v. Rothfield
Excerpt:
- .....party to 'seek his remedy before the sub-court by taking suitable actions' in respect of the ad interim injunction ordered in i.a. no. 172 of 1979. aggrieved against this order, judgment-debtor, who was the first respondent in the court below, has preferred this civil revision petition contending that the executing court is bound to respect the orders of a superior court and it is bound to take subsequent events into consideration and give effect to it, and in any event, it can never act in such a manner as to compel a person to commit contempt of proceedings of another court.3. mr. t.s. subramaniam, counsel for the petitioner contends that the power to grant injunction is not circumscribed by what is provided under order 39, civil procedure code, and courts being invested with.....
Judgment:

T. Sathiadev, J.

1. Judgment-debtor who was the first respondent in the Court below is the petitioner herein, first respondent herein as the decree-holder filed R.E.P. No. 279 of 1978 in O.S. No 543 of 1964 on the file of the Additional District Munsif of Sankari at Salem, under Order 21, Rule 35, Civil Procedure Code, for delivery of the petition-mentioned immovable property to the petitioner stating that he had obtained a decree on 4th April, 1968 for possession of immovable property but he was not able to take possession all along in view of the pendency of proceedings in Appellate Courts. The first respondent, who is the petitioner herein, and the second respondent contended that whatever be the decree that had been obtained 10 years back, since the decree-holder has no title to the suit property, he cannot recover possession of the property, that the defendants had been under the wrong impression of the ownership of the decree-holder and now only they realise that they have paid rents for the site wrongly and now that the Government had given house site pattas under the general law as well as under Kudiyiruppu Acts, the defendants are not liable to abide by the decree in O.S. No. 543 of 1964 and that by virtue of the patta granted by the Government, they have become owners of the suit site as well. As for superstructure, it was put up only by the defendants, and therefore for all these reasons, the execution petition deserves to be dismissed.

2. It appears that the petitioner herein filed a petition to reopen the matter on 19th February, 1979 and at that time the orders passed by the Sub-Gourt, Salem in I.A. No. 172 of 1979 in O.S. No. 231 of 1979 was shown to the counsel for the first respondent herein to the effect that he had been injuncted from proceeding further with the execution proceedings taken by him before the District Munsif's Court of Sankari at Salem. The Court below after considering the earlier proceedings and the specific order made by this Honourable Court in C.M.S.A. No. 167 of 1974, held that the first respondent will be entitled to the relief of delivery of possession of the immovable property and leaving it to the party to 'seek his remedy before the Sub-Court by taking suitable actions' in respect of the ad interim injunction ordered in I.A. No. 172 of 1979. Aggrieved against this order, judgment-debtor, who was the first respondent in the Court below, has preferred this civil revision petition contending that the executing Court is bound to respect the orders of a superior Court and it is bound to take subsequent events into consideration and give effect to it, and in any event, it can never act in such a manner as to compel a person to commit contempt of proceedings of another Court.

3. Mr. T.S. Subramaniam, counsel for the petitioner contends that the power to grant injunction is not circumscribed by what is provided under Order 39, Civil Procedure Code, and Courts being invested with inherent jurisdiction to grant the relief of injunction in the interests of justice, when a Court had chosen to injunct a party from participating in a pending proceedings, such an order should be respected by the other Court, and it can never act in a manner as to compel the party against whom injunction has been ordered, to disobey the order of injunction, and in this case, when a comprehensive suit has been filed by the petitioner herein in the Sub-Court taking into account the subsequent events, there can be no question of completing the process of execution which would result in grave injustice to the petitioner herein and would also lead to multiplicity of proceedings. His further contention is that the first respondent herein had not taken so far any step to have the ad interim injunction vacated, and so far as the Court below is concerned the order passed by it is illegal irrespective of whatever may be the direction that might have been issued by the High Court in C.M.S.A. No. 167 of 1974. He states that an Appellate or Revisional Court can intercept the proceedings of the subordinate Court by passing orders of injunction or stay. Otherwise one civil Court can interdict the proceedings of another civil Court by issue of an order of injunction, but every civil Court has the inherent jurisdiction to injunct a party to the proceedings in another Court irrespective of whether it is subordinate or not from further proceeding with the matter, and in this case when the decree-holder-first respondent herein had been injuncted by the Sub-Court from taking possession of the suit property pursuant to the decree passed in O.S. No. 543 of 1964, the executing Court acted illegally in directing delivery of the property by 24th March, 1979.

4. The learned Counsel for the first respondent contends that when the High Court in C.M.S.A. No. 167 of 1974 has directed as follows:

Undoubtedly, the decree is executable. Therefore there is absolutely no merits, in the C.M.S.A. which stands dismissed. The executing Court is directed to dispose of E.P. No. 742 of 1974 on or before the 15th August of 1978. I make it clear that in the event of the E. P. being allowed, the executing Court will not grant any time for delivery of vacant possession.

The executing Court is bound to conclude the matter irrespective of whatever be the injunction that may be obtained against the first respondent herein, and as far as the Court is concerned, there being no order preventing it from further proceeding with the execution proceedings, it was well within it's right in directing delivery of possession of property. When the order passed in I. A. No. 172 of 1979 is only confined against the party to the proceedings, the executing Court is not bound to take cognisance of it and it is entirely for the concerned party to take steps for vacating the order of injunction in the Sub-Court and justify to that Court what had been done by him in compliance of the lawful order of the executing Court. It will not be open to the petitioner herein to prevent a Court from functioning effectively and disposing of the matter beforeit, by getting an order as against the party to the proceedings thus preventing him from lawfully prosecuting the matter before the civil Court. He states that I.A. No. 172 of 1979 in O.S. No. 231 of 1979 was not proceeded with because time and again it was represented by the petitioner herein that this civil revision petition is pending disposal in this Court and therefore there is no need for passing any orders thereon.

5. The main point that arises for consideration is, whether the Court below was correct in directing delivery of possession of property by virtue of the directions given by this Court in G.M.S.A. No. 167 of 1974 in spite of the order of ad interim injunction obtained against the first respondent alone in I.A. No. 172 of 1979 in O.S. No. 231 of 1979 filed subsequently by the petitioner herein in the Sub-Court of Sankari at Salem.

6. Mr. T.S. Subrarnaniam, counsel for petitioner in support of his contentions relies upon the following decisions to plead that when an order of interim injunction is obtained against a party to the proceedings preventing him from participating in the proceedings in another Court, the other Court is bound to take into account such an order and refrain from further proceeding with the matter because, the power exercised by the Court which granted the injunction is an inherent power which is much wider than what is contemplated under Order 39, Civil Procedure Code. He refers to the Division Bench decision rendered in Bahadur Singh v. A. H. Forbes : AIR1922Pat382 . wherein the judgment-debtor at the stage when the property was brought to sale by the executing District Court, filed a suit in a Sub-Court against the decree-holder claiming the property as his own and obtained an order of interim injunction restraining the decree-holder from selling the property. In spite of it the executing Court sold the property. It was held therein:

It may be quite true that the learned District Judge was not personally bound by the order of injunction, and indeed the Subordinate Judge could not have issued any injunction upon the Court of the District Judge, but the powers which the learned District Judge was asked to exercise were the inherent powers which he undoubtedly had of taking action in the particular circumstances of the case, and we, as a Court having superintendence over that Court, are also, I think, entitled to exercise our powers of superintendence over the District Judge; and if we think that he has dearly gone wrong, inadvertently it is true, assisting one of the parties in what amounts to a contempt of the order of the Court, then I think we are clearly entitled to take such steps as may be necessary to put the parties in the same position as if no contempt of Court had taken place.

In that case also, there was an order by the High Court but it was not in the nature of a mandatory order directing the property to be sold within a prescribed date. It was finally held that the order of sale made by the District Judge in spite of the order of interim injunction of the Subordinate Judge is of no effect and it would not be binding between the parties.

7. Then he relied upon a decision in Milton & Company v. Ojha Automobile Co. : AIR1931Cal279 . and which arose under Section 56 of the Specific Relief Act and it was held therein that the Court has inherent rights to protect suitors resorting to it apart from whatever is found in Order 39, Civil Procedure Code, and that 'the order of one Indian Court may be effective against a person within the jurisdiction of another Indian Court, when a similar order by an English Court would be of no avail against a person within a foreign jurisdiction.

8. Umapati v. Subodha Chandra : AIR1953Cal377 dealing with the scope of Order 39, Civil Procedure Gode, held that 'Order 39 does not exhaustively deal with the matter of granting of temporary injunction and apart from those provisions of Order 39 of the Code the Court can grant temporary injunction in the exercise of its inherent jurisdiction and there is nothing in Section 56 of the Specific Relief Act to prevent the Court from restraining a party from proceeding with judicial proceedings'. Dealing with the case arising under the Specific Relief Act, in Sheo Nandan Prasad v. Sheo Parsan Palhak : AIR1942Pat349 . it was held that to avoid multiplicity of proceedings, injunction can be granted to restrain a party from executing his decree.

9. Finally, Mr. T. S. Suhramaniam, counsel for the petitioner would refer to the decision of the Supreme Court in Manohar Lal v. Seth Hiralal : AIR1962SC527 . wherein it has been clearly held that the power of a civil Court to grant interim injunction is not restricted by what is found in Order 39, Civil Procedure Code and that it has inherent jurisdiction to issue an order of injunction in respect of matters which are not covered by it. In that case, a suit was first instituted by the plaintiff in Sub-Court, Asansol and during its pendency, the defendant filed a suit in the District Court, Indore and obtained an order of interim injunction under Order 39, Civil Procedure Code, restraining the 'plaintiff' in the earlier suit from proceeding with the Asansol suit pending decision of the suit filed in the Indore Court. By relying upon the provisions in Sections 94 and Order 39, Civil Procedure Code, it was contended that interim injunction can be issued only if provision is found under the rules and the grant of temporary injunction to prevent a party from participating in the proceedings in the earlier instituted suit, being not contemplated under the Rules, the order of interim injunction granted by the Indore Court is illegal. The Supreme Court taking note of the divergence of opinion between the several High Courts held that the 'Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, Civil Procedure Code. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any Rules made under the Code.'

It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' is only this that when the Rules prescribed the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed Rule. If the provisions of Section 94 were not there in the Code, the Court Gould still issue temporary injunctions but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

Having referred to the inherent powers of Courts in Section 151, Civil Procedure Code, it was held that 'it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.' In the said decision reference was made to Gotten v. Rothfield (1919) 1 K.B. 410. wherein it has been held:

Where it is proposed to stay an action on the ground that another is pending, and the action to be stayed is not in the Court asked to make the order, the same result is obtained by restraining the person who is bringing the second action from proceeding with it. But, as the effect is to interfere with proceedings is another jurisdiction, this power should be exercised with great caution to avoid even the appearance of undue interference with another Court.

While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised, and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless.

Ultimately, it was held that the Additional District Judge, Indore, was in error in issuing temporary injunction against the plaintiff in the earlier instituted Asanso suit from further proceeding with the suit.

10. Whereas the learned Counsel for the first respondent would refer to the decision in Mangal Achi v. I. S. Asoka : AIR1973Mad258 . wherein it was held that when a decree-holder who has lawfully obtained a decree further takes execution proceedings he is not committing any illegal injury and therefore, no injunction can be issued under Order 39, Rule 2, Civil Procedure Code, and hence any order of injunction restraining the decree-holder-auction-purchaser from doing what was lawful for him to do, cannot be sustained. The only other decision relied upon by him is the one rendered in Soosai Odayar v. R. Swaminatho Aiyer : AIR1936Mad522 but I find that this has no relevance to the point in issue.

11. Therefore, it is apparent that the power of grant of injunction is an inherent power, which is not limited to what is prescribed under Order 39, Givil Procedure Code. But if the power is to extend as to prevent a party to the proceedings from participating in it, it will have to be exercised with great caution to avoid even the appearance of undue interference with another Court. The Supreme Court has clearly held that the inherent powers have to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. No Court can ever pass an order which would stultify the other Court from proceeding with the matter in the manner in which it is expected to proceed and dispose of the matter, unless it be shown that the order of injunction or stay has been issued by a superior Court in an appeal or in a revision proceedings. The inherent power invested in a civil Court cannot be invoked to the extent of preventing another civil Court from proceeding with the matter on its file, unless it is subject to the revisional or appellate jurisdiction of the other Court. Before issue of ad interim injunction, there is always a bounden duty on the part of the Court to apply its mind to find out the nature of relief asked for and under what circumstances the party seeks its aid. It cannot in a bindfold manner issue orders of ad interim injunction, which would in effect result in the party to the proceedings in another Court committing contempt of the orders of the Court, which issued the injunction. The Supreme Court has ultimately held that the inherent power of the civil Court is available only if the party to the proceedings satisfies the Court that exceptional circumstances exist which call for necessary relief to be granted. Therefore unless a party who invokes the inherent jurisdiction satisfies the Court about the need for ad interim injunction against a party preventing him from further prosecuting the proceedings, which he is legally entitled to institute, the order of interim injunction will be an improper one.

12. So far as the present case is concerned the revision petition is not against the order of ad interim injunction granted in I.A. No. 172 of 1979 in O.S. No. 231 of 1979. It is therefore not necessary to go into the question of finding out to what extent the order of ad interim injunction passed by it is valid or not, but for the present purposes of finding out whether the execution Court was well within its right in ordering delivery of possession of property in spite of the decree-holder being injuncted in I.A. No. 172 of 1979 from further proceeding with the execution proceedings, it has to be remembered that in G.M.S.A. No. 167 of 1974 this Court has directed the executing Court to complete the proceedings by a specific date unlike the nature of the order passed by the High Court in Bahadur Singh v. A.H. Forbes : AIR1922Pat382 . As held in Mangal Achi v. V.S. Asokan : AIR1973Mad258 . when a decree-holder executes a decree he does not commit any illegal injury which would call for such a proceeding being injuncted with. The order of injunction issued in I.A. No. 172 of 1979 has been shown to the first respondent, and indirectly, the petitioner herein had asked the executing Court to stay its hands. Even though it may appear as if the petitioner herein has secured an order of injunction only against the first respondent, it is apparent that the order is intended to stultify the proceedings in another Court which proceded to execute a lawful decree and which has been directed by this Court to be completed within the time indicated by it in C.M.S.A. No. 167 of 1974. Under such circumstances it cannot be said that the order of injunction issued is one which would justify the exercise of the inherent jurisdiction, which according to the Supreme Court can be invoked only in very exceptional and justifiable circumstances. As pointed out in Cohen v. Rothfield (1919) 1 K.B. 410. this power should be exercised with great caution to avoid even the appearance of unduel interference with another Court. Hence, I consider that when the circumstances above stated clearly go to show that the attempt of the petitioner herein is to interfere with the course of proceedings in another Court, it will be well within the jurisdiction of the executing Court to proceed further with the matter and dispose it of accordingly, leaving it to parties to work out their rights in the other Court.

13. Even though Mr. Subramaniam, counsel for the petitioner, contends that no Court shall act in such a manner as to compel a party to commit contempt of proceedings in another Court, I see no substance in such a contention because the Court which has issued the order of injunction Would soon realise that it has passed an order claiming to be one in the exercise of its inherent jurisdiction, but in fact, it was an order which was secured by the petitioner herein without any justification. Though it is claimed that to avoid multiplicity of proceedings a Court can exercise its inherent jurisdiction it cannot be so in a case of this nature where the suit Was instituted in 1964 and decree was obtained as early as on 4th April, 1968, and the decree-holder is prevented from getting possession of his property, and further realising the procrastination in the proceedings this Court went to the extent of fixing a time-limit for completion of delivery of possession of property. Under such circumstances, no civil Court can ever claim that it has inherent jurisdiction which would enable it to stultify the proceedings in another Court, by preventing a party to participate in execution proceedings lawfully instituted, and which can be proceeded with by the competent Court without any interference by another Court except the Appellate and Revisional Courts.

14. Though it is contended by the learned Counsel for the petitioner that the Court below was in error in directing the first respondent herein to seek his remedy before the Sub-Court which would mean that he has to face contempt proceedings, by taking suitable action, in my view, the direction is not to the effect that he should face contempt proceedings in the Sub-Court, but it is intended to inform him that it is open to him to appraise the Sub-Court of the nature of the matter and as to why the executing Court is ordering delivery of possession of property in spite of the temporary injunction granted in I.A. No. 172 of 1979 and thereby have the order rescinded. Such a direction cannot be considered to mean that the first respondent herein is directed to face contempt proceedings.

15. At this stage, I consider it will be relevant to bear in mind as to what could happen to a party who is prevented from participating in proceedings which had been lawfully instituted by or against him. If it is a proceeding instituted by him and he is prevented by another Court from participating in such proceedings, for nonappearance the other Court may dismiss his case. In case he is a respondent, adverse orders will be passed against him. This will compel him to face the risk of losing his rights for ever, unless he is fortunate to have the matters restored and further proceedings are taken well within time. Even while exercising the inherent power, the Court is bound to find out whether the expediency of the matter calls for ex parte order of ad interim injunction being passed or whether the purpose cannot be achieved by first issuing notice to the party, and thereafter pass necessary orders on the injunction petition. In a matter like this, where the Sub-Court has been apprised of execution being taken and the relief is asked only against the party preventing him from further proceeding with the execution proceedings and when both the Courts are situate in the same building, it is unthinkable that the Sub-Court should have passed ad interim injunction without first issuing notice, particularly when it is exercising its inherent powers, which in the words of the Supreme Court should be exercised only in exceptional circumstances.

16. I am of the view, that whenever an injunction has to be issued against a party preventing him from participating in lawfully instituted proceedings in another civil Court, it should be done first by issue of notice and only later on the Court after hearing both the parties pass suitable orders which would not interfere with proceedings in another Court. This procedure would enable it to become aware of the nature of the proceedings instituted, and if at all it is to injunct a party to participate in lawfully instituted proceedings it can be done only after satisfying the Court that exceptional circumstances necessitate relief to be granted to him which may be for the purposes of avoiding multiplicity of proceedings or to prevent injustice being caused. Except appellate or revisional Court no civil Court can pass an order of ad interim injunction which to its knowledge would result in a person being proceeded against for disobeying such an order merely because that person is participating and proceeding with the proceedings in another Court which is lawfully exercising its powers. For participation in lawful proceedings no Court can hold such a person as a wrong-doer. Hence before exercising the inherent power, instead of expecting the other Court to be prudent in not proceeding with proceedings the Court, wherein injunction petition is filed, alone should act with restraint or prudence so as to avoid embarrassment to both the Courts. After all it can afterwards give necessary reliefs for whatever harm, if any, occasioned by the orders of the other Court before which the party is bound to appear. Existence of power does not necessarily mean exercise of it without prudence and without precautions being taken. Issue of notice in a case of this nature would have prevented a party being put in the quandary of whether to appear before the executing Court and have the decree executed or involve himself in the likely contempt proceedings which may be taken for not complying with the injunction order. It is unfortunate that the first respondent herein had not even realised as to what should be done about I.A. No. 172 of 1979, in spite of the pendency of the civil revision petition. This Court had not granted any interim order and nothing prevents him from moving the Sub-Court to have the injunction order vacated. He could have moved this Court for necessary directions. If in case it delays the disposal of the application, necessary remedies are available in the superior Court to have the I.A. disposed of and if the order is adverse to him, he could have moved this Court, in which event, along with the civil revision petition, this Court would have prevented the anomalous situation in which a party-is compelled not to participate in lawfully instituted proceedings. Therefore, taking into account the orders passed by this Courtin C.M.S.A. No. 167 of 1974, which has directed the executing Court to dispose of the petition by 15th August, 1978, and which has compelled the Additional District Munsif's Court to order delivery of possession of properties leaving it to the first respondent to take suitable action before the Sub-Court being in order, this civil revision petition stands dismissed with costs.


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