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Jital Singh and ors. Vs. Raja Kamaleswari Prosad - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.614
AppellantJital Singh and ors.
RespondentRaja Kamaleswari Prosad
Cases ReferredHarman v. Jones
Excerpt:
jurisdiction - civil court--stay of proceedings--execution proceedings--decree of revenue court--suit for declaration that decree bad--temporary injunction, if may be issued--no prayer for permanent injunction--civil procedure code (act v of 1908), order xxxix, rule 2--injunction. - .....had been passed without jurisdiction and was illegal and inoperative. during the pendency of this suit, an application was made, under 'rule 2 of order xxxix of the code of 1908, for a temporary injunction to restrain the landlord from executing the order in question. the court of first instance granted this application. upon appeal, the district judge has discharged the order on the ground that a civil court is not competent to stay execution of an order made by the revenue authorities. in support of this view, the district judge has referred to the case of onkar singh v. bhup singh 16 a. 496. it does not appear, however, to have been brought to his notice that this decision of the allahabad high court has not been accepted as well founded by this court, in the case of ram lochan singh.....
Judgment:

1. We are invited in this Rule to set aside an order by which the Court of appeal below has discharged an order of the primary Court granting a temporary injunction. It appears that the landlord, opposite party, obtained an order under Sub-section (5) of Section 70 of the Bengal Tenancy Act and proceeded to execute it by an application to the Civil Court, The petitioner thereupon commenced a suit in the Court of the Subordinate Judge for a declaration that the order of the Revenue Authorities had been passed without jurisdiction and was illegal and inoperative. During the pendency of this suit, an application was made, under 'rule 2 of Order XXXIX of the Code of 1908, for a temporary injunction to restrain the landlord from executing the order in question. The Court of first instance granted this application. Upon appeal, the District Judge has discharged the order on the ground that a Civil Court is not competent to stay execution of an order made by the Revenue Authorities. In support of this view, the District Judge has referred to the case of Onkar Singh v. Bhup Singh 16 A. 496. It does not appear, however, to have been brought to his notice that this decision of the Allahabad High Court has not been accepted as well founded by this Court, in the case of Ram Lochan Singh v. Beni Prosad Kumri 36 C. 252 : 1 Ind. Cas. 933 9 C.L.J. 125 : 13 C.W.N. 791. This latter decision is an authority for the proposition that although a decree may have been passed by a Revenue Court, when it is under execution in a Civil Court, proceedings may be stayed by the Civil Court if a suit has been brought for a declaration that the decree was obtained by fraud or was made without jurisdiction and for a perpetual injunction to restrain the decree-holder from executing the decree. In the case before us, the ground assigned by the learned Judge for his order is, therefore, not well founded. But it is clear that his order is right on the merits. An examination of the plaint shows that the suit is solely for declaration; there is no prayer for any consequential relief; plaintiffs do not ask for a perpetual in-janction to restrain the decree-holder from executing the decree on the ground that the decree was made by the Collector without jurisdiction. An order for temporary in-junction, such as the plaintiffs seek, can, under Order XXXIX, Rule 2 of the Code of 1908, be sought only in aid of the prospective order for a perpetual injunction. If the plaintiffs do not ask for a perpetual injunction, if, therefore, in the event of their success, they cannot obtain a decree for perpetual injunction, it is clearly not Competent to them to ask for a temporary injunction during the pendency of the suit. In granting a temporary injunction, the Court acts in aid of the legal right, so that the property may be preserved in status quo. launders v. Smith (1838) 3 My. and Cr. 711 : 7 L.J. (N.S.) Ch. 227 : 2 Jur. 491 at p. 536 : 45 R.R. 367; Hilton v. Granville (1841) Cr. and Ph. 283 at p. 292 : 54 R.R. 207 at p. 303 : 4 Beav. 133 : 10 L.J.Ch. 398; Harman v. Jones (1841) Cr. and Ph. 299. Here, however, the plaintiffs do not seek a Permanent injunction in the suit, and even if they are, successful, the defendant will be free to execute the decree. They cannot on principle enjoin the defendant temporarily, when, upon the disposal of the suit and dissolution of the temporary injunction, the defendant will be at liberty to proceed with execution. Under these circumstances, we are of opinion that the District Judge rightly refused the application for injunction. But we do not express any opinion upon the questions whether the proviso to Section 42 of the Specific Relief Act, or Sub-section (5) of Section 70 of the Bengal Tenancy Act, is a bar to the suit as framed.

2. The result is that this Rule is discharged with costs. We assess the hearing-fee at two gold mohurs.


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