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Jodhan Prosad Bhakat Vs. Heeralal Agarwalla and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal371
AppellantJodhan Prosad Bhakat
RespondentHeeralal Agarwalla and Co.
Excerpt:
- .....affidavit or otherwise that any property in dispute in a suit is in danger...of being wrongfully sold in execution of a decree .... the court may by order grant a temporary injunction to restrain. . . the sale of the property as the court thinks fit until the disposal of the suit or until further orders.3. the rule does not say that the property is going to be wrongfully sold in execution of a decree. the rule authorizes the court to grant temporary injunction to restrain an execution sale when the property attached is in danger of being wrongfully sold. in each case therefore the court will have to consider whether there is a danger of the property being wrongfully sold in execution of the decree. the principle underlying this rule is to prevent multiplicity of judicial proceedings......
Judgment:

Nasim Ali, J.

1. The facts which are not seriously disputed in this case are these : The respondents obtained a decree against a firm Moti Bhakat Ramkrishen in the Original Side of this Court in the year 1927. This decree was transferred for execution to the Court of the Subordinate Judge of Murshidabad in the year 1934 and certain properties were attached in execution of the said decree. The appellant preferred a claim to the attachment of the properties under Order 21, Rule 58, Civil P.C. This claim was dismissed on 31st March 1936. On 12th May 1936 he filed a suit under Order 21, Rule 63 of the Code for establishment of his title to the property and for perpetual injunction restraining the respondents from selling the properties in execution of the decree obtained by them against the judgment-debtor firm. He also filed an application for temporary injunction under Order 39, Rule 1 of the Code for restraining the respondents from selling the properties attached during the pendency of the suit. The learned Judge rejected this application on 6th August 1936. The present appeal is against this order.

2. The case of the plaintiff-appellant is that the property was purchased by him with his own money and that after his purchase he considerably improved the property by constructing a new structure at considerable costs. He also alleges that he has been paying rent due to the landlords and other dues in respect of the property. It is also stated in the plaint that the judgment-debtor firm or any of its partners has no right or interest in the property attached. The case of the defendant-respondents is that the plaintiff-appellant is a partner of the judgment-debtor firm and that he is also a junior member of a joint Mitakshara family carrying on business under the name and style of the firm Moti Bhakat Ramkrishen. The respondents further allege that the plaintiff had no separate property nor any separate funds out of which he could purchase the property attached. On these pleadings of the parties, there cannot be any doubt that there is a substantial question in controversy between the parties. The mere fact that the plaintiff-appellant lost the claim case is not enough to indicate that the suit is a frivolous one or that it is an abuse of the process of the Court. The application is under Order 39, Rule 1 of the Code. That Rule, so far as it is relevant for the purpose of the present appeal, is in these terms:

Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger...of being wrongfully sold in execution of a decree .... the Court may by order grant a temporary injunction to restrain. . . the sale of the property as the Court thinks fit until the disposal of the suit or until further orders.

3. The Rule does not say that the property is going to be wrongfully sold in execution of a decree. The Rule authorizes the Court to grant temporary injunction to restrain an execution sale when the property attached is in danger of being wrongfully sold. In each case therefore the Court will have to consider whether there is a danger of the property being wrongfully sold in execution of the decree. The principle underlying this Rule is to prevent multiplicity of judicial proceedings. If the property is sold and purchased by a stranger and if the auction-purchaser takes possession through the executing Court and if ultimately the plaintiff succeeds in the suit the plaintiff will have to institute suit or other proceedings for recovery of possession. In order to avoid multiplicity of litigation, the Rule lays down that whenever the Court finds that there is a danger of the property being wrongfully sold the Court should issue an injunction restraining the sale of the property. The order of the learned Subordinate Judge indicates that he treated this application as an application under Order 39, Rule 2 and not under Rule 1 of the Code. It appears from his order that he has wholly overlooked the provisions of Order 39, Rule 1 and has rejected the appellant's application under an erroneous view of law. In these circumstances the order of the learned Subordinate Judge cannot be sustained. The result therefore is that this appeal is allowed, the order appealed against is set aside and the application for temporary injunction is allowed. The respondents are restrained from selling the property, which is the subject-matter of the suit, in execution of the decree obtained by them against the firm Moti Bhakat Ramkrishen pending the hearing of the suit instituted by the appellant against the respondents in the Court of the Subordinate Judge at Murshidabad. The learned Judge is also directed to expedite the hearing of the suit out of which this appeal arises. There will be no order for costs in this appeal. Let the records in this case be sent down as early as possible.

Bartley, J.

4. I agree.


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