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In Re: Brojendra Kumar Rai Chowdhuri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal515
AppellantIn Re: Brojendra Kumar Rai Chowdhuri and ors.;rup Lall Doss and anr.
Respondent;brojendra Kumar Rai Chowdhuri and ors.
Cases ReferredGossain Money Puree v. Guru Pershad Singh I.L.R.
Excerpt:
civil procedure code, 1882, section 492 - civil procedure code, 1859, section 92--injunction to stay sale pending suit to establish title--superintendence of high court under section 622, civil procedure code, 1882. - .....case the petitioner, brojendra kumar rai chowdhuri, obtained a decree in the court of the first subordinate judge of dacca. in execution of this decree he sought to sell certain property. thereupon certain persons, rup lall doss and rughoonath doss, preferred a claim to that property, this claim was unsuccessful, and was rejected in the course of the execution proceedings. on this rup lall doss and rughoonath doss instituted a regular suit to assert their right to the property attached by brojendra kumar rai chowdhuri in execution of his decree. in that suit they applied for a temporary injunction to restrain brojendra kumar rai chowdhun from selling the property until the decision of the suit so brought by them to assert their title thereto. this suit is pending in the court of the.....
Judgment:

Field, J.

1. In this case the petitioner, Brojendra Kumar Rai Chowdhuri, obtained a decree in the Court of the First Subordinate Judge of Dacca. In execution of this decree he sought to sell certain property. Thereupon certain persons, Rup Lall Doss and Rughoonath Doss, preferred a claim to that property, This claim was unsuccessful, and was rejected in the course of the execution proceedings. On this Rup Lall Doss and Rughoonath Doss instituted a regular suit to assert their right to the property attached by Brojendra Kumar Rai Chowdhuri in execution of his decree. In that suit they applied for a temporary injunction to restrain Brojendra Kumar Rai Chowdhun from selling the property until the decision of the suit so brought by them to assert their title thereto. This suit is pending in the Court of the Second Subordinate Judge. The application for an injunction was refused. There upon Rup Lall Doss and Rughoonath Doss went back to the Court of the First Subordinate Judge and applied to him to stay the sale of the property until the decision of the title suit pending in the Court of the Second Subordinate Judge. The First Subordinate Judge, in compliance with their application, made an order so staying the execution of the decree.

2. We are now asked to say that the First Subordinate Judge had no jurisdiction to make this order. It is contended by the learned Advocate-General on the authority of two cases--Roy Luchmiput Singh v. The Secretary of Stale 20 W.R. 11 : S.C. 11 B.L.R. Ap.27 and Doorga Churn Chatterjee v. Ashootosh Dutt 24 W.R. 70 that the First Subordinate Judge had jurisdiction, and that the order staying the execution sale was properly made. It appears to us that the Legislature has deliberately altered the law as laid down in the two cases just referred to. Under Section 92 of the old Code, Act VIII of 1 1859, the words were 'that any property which is in dispute in the suit is in danger of being wasted, damaged, or alienated, by any party to the suit;' and in the case of Roy Luchmiput Singh v. The Secretary of State 20 W.R. 11 : s. c. 11 B.L.R. Ap. 27 it was held that property, which was about to be sold in execution, could not be said to be in danger of being wasted, damaged, or alienated within the purview of these words. In the present Code, Section 492, other words have been introduced, namely, 'or wrongfully sold in execution of a decree,' and these words must be read with the previous part of the section, that is, 'that any property in dispute in a suit is in danger of being wrongfully sold in execution of a decree.' The law does not say that a property is or is about to be wrongfully sold, but that it is in danger of being wrongfully sold. We think that these words are wide enough to include a case, such as that which is now before us, and that in a case of this kind there is a sufficient remedy provided under the present Code by an application to the Court in which the title to the property is being litigated, for an ad interim injunction to restrain the defendant in that suit from proceeding to a sale of the property until the title has been definitely determined.

3. The point does not appear to have been as yet decided by this Court under the new Code. But we may refer to the case of Gossain Money Puree v. Guru Pershad Singh I.L.R. 11 Cal. 148. In that case one Gossain Money Puree obtained a decree against Chacka Singh upon a mortgage bond, and the mortgage property was directed to be sold. This decree was confirmed by the High Court. Chacka Singh was the father of a Mitakshara family. After Gossain Money Puree had obtained his decree, the sons of Chacka Singh brought a suit to have their title to certain shares in the property declared. Gossain Money Puree then proceeded to execute his mortgage decree, whereupon the sons applied for and obtained an ad interim injunction restraining him from selling the property until the title suit was decided. The title suit was subsequently decided adversely to the sons. They preferred an appeal to the High Court, and they obtained from the Subordinate Judge a further injunction restraining Gossain Money Puree from executing his decree until the appeal was decided. The High Court were of opinion that the Subordinate Judge had no jurisdiction to grant this further' injunction; but in speaking of the first injunction to stay the sale pending the decision of the suit in the Court of the Subordinate Judge, Garth, C.J., said: ' He, that is, the Subordinate Judge, had a right whilst the questions in this suit were awaiting trial, to restrain the defendants by an ad interim injunction from enforcing his decree in the former suit.' As we have already said the question now before us was not decided, but the case is important as an instance in which a Subordinate Court issued an ad interim injunction since the passing of the new Code under circumstances similar to those in the present case; and such course was approved by the High Court, although the exact question did not come before that Court for decision.

4. It appears to us then that under the language of Section 492 of the present Code, Rup Lall Doss and Rughoonath Doss could have obtained from the Second Subordinate Judge an ad interim injunction to stay the sale of the property. Whether under the circumstances such an injunction ought or ought not to have been granted, is a question not now before us, and upon which we therefore express no opinion.

5. We are then of opinion that, if the circumstances justified it, an order staying the sale might have been obtained under the provisions of Section 492 from the Second Subordinate Judge; and that this section has been amended so as to afford a remedy which was not available under the section of the old Code. This being so, and the Court executing the decree not being vested with power to stay execution under these circumstances by any of the other provisions of the present Code, we do not think that the First Subordinate Judge had jurisdiction to make, upon the application of a third party, an order staying the execution of the decree. There are, in; the present Code, express provisions for stay of execution (see for example Sections 289 and 243, and as to stay of execution of a decree under appeal Sections 545 and 546). There is no provision which enables a Court to stay execution upon the application of a third party; and having regard to the fact that the Legislature has provided for stay of execution in certain cases and has not provided for the particular case now before us, bearing further in mind that in our view the preventive jurisdiction which is sought to be called into operation can be otherwise exercised under a specific section of the Code, we think that the First Subordinate Judge had not jurisdiction to make the order which we are now asked to set aside.

6. The rule must, therefore, be made absolute with costs.


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