Abdul Ahad Baba vs Ghulam Mohd. Dar and Others

J.N. Bhat, J.—This is a revision petition against the order of the Munsiff Sopore whereby he has rejected an application of the Petitioner for

stay of some execution proceedings between the parties pending fax his court. This appllcation of the Petitioner has been dismissed in limner on the

report of the office and without even issuing a notice to the other side.

The Petitioner made an application before the trial court on 30th' March 65 to the effect that he had filed-a suit in the trial court under Order 21,

Rule 68. (it should be Rule 63) of the Code of Civil Procedure. That suit had been dismissed in default. The Plaintiff Petitioner had presented a.

petition for its restoration. The Defendants were purposely evading service - in the application. The date fixed in that application was 12th April

The Defendants were trying to, get the house; attached and sold before the disposal,, of the suit which would cause great hardship and

defamation to the Petitioner. The proceedings in the execution are stayed. This application was summarily reject tea by the trial court as already

stated.

From the application and the order of the trial court it would appear that the suit under Order 21, Rule 63 brought, by the Petitioner had been

dismissed for default. The file of the original suit shows that it was dismissed on 28-12-64. It is admitted, that an application for its restoration had

been, made by the Petitioner; which is pending in the trial court"". According to the Petitioner, the Defendants non-applicants in that application

evade service. They appear in the relevant execution petition but avoid service in the restoration application. Hence the necessity for the, Petitioner

to have moved the application for stay of the proceedings in the execution application.

Mr. S, Lal appearing for the respond dents in this case has argued that an order of| injunction under Order 39, Rule 1 of the Code of Civil

Procedure, can be issued only in a suit. There is no suit pending between the parties. As the suit has been dismissed for default, this application is

not maintainable. In this, connation he has referred to AIR 1952 Mys 76, Hemendralal Roy Vs. Indo Swiss Trading Co., Ltd., and Murugesa

Mudali Vs. Angamuthu Mudali,

Out of this list, Murugesa Mudali Vs. Angamuthu Mudali, has been considered in a recent Supreme Court authority, Manohar Lal Chopra Vs.

Rai Bahadur Rao Raja Seth Hiralal, and has been over ruled

Hemendralal Roy Vs. Indo Swiss Trading Co., Ltd., lays down that tha court has no inherent power to grant a temporary injunction u/s 151,

Code of Civil Procedure, and an injunction can, be granted only if a case it covered by Order 39.

Similarly in AIR 1958 MP 154 it has been laid down that the court has no inherent power to grant a temporary injunction unless the matter, is

coyerjeol by, Order 39.

AIR 1952 Mys 76 refers to the grant of an injunction in a forma pauper is application before the application has been registered as a suit. That

authority says that till the application to sue as a pauper is registered as a suit temporary injunction cannot he granted.

So far as the last authority is concerned, there are contrary authorities also on this point. See Dhaneshwar Nath Tewari Vs. Ghanshyam Dhar

Misra, , Manorama Dasi Vs. Sabita Dasi, .

In another case, another authority on this very subject was brought to my notice though that authority has not been coifed in this case, yet as

the point, to be decided is a point of law, I think it proper to refer to that authority also. This authority is AIR 1924 Oudh 845. The ratio

decidedness of that authorize is that when a suit is dismissed for default, there is no suit pending and no injunction can be granted. But all these

authorities in my opinion arc of no consequence now in view of the Supreme Court decision in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja

Seth Hiralal, wherein Raghubar Dayal, J. speaking v. for Wanchoo and Das Gupta, JJ. has said:

On the first question it is argued for the Appellant that the provisions of Clause (c) of Section 94, Code of Civil Procedure, make it clear that

interim injunctions can be issued only if a- provision for their issue is made under the rules, as they provide that a court may, if it is so prescribed,

grant temporary injunctions in order to prevent the ends of justice from being defeated, that the word 'prescribed according to Section 2, means

'prescribed by rules', and that Rule 1 and 2 of Order 39 lay down certain circumstances in which a temporary injunction may be issued.

There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the

circumstances do not fall within the provisions of Order 39 of the Code, AIR, 1926 Mad 258, N. Govindarajulu Nayudu Vs. Imperial Bank of

India, , Murugesa Mudali Vs. Angamuthu Mudali, and AIR 1949 Mad 104. The other view is that a an issue an interim injunction under cracks

which are not covered by Order 39 of the Code, if the court is of the opinion that the interest of justice require the issue of such intern injunction:

Dhaneshwar Nath Tewari Vs. Ghanshyam Dhar Misra, and Chinese Tannery Owners' Association and Others Vs. Makhan Lal and Others, . We

are of opinion that the latter view is correct and that the courts have there jurisdiction to issue temporary injunctions in circumstances which are

covered by the provision; of Order 39 CPC 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 she 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

prescribe 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 raise bring it within the prescribed rule. If the

provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its

inherent jurisdiction. No party has aright to insist on the Court's exercising that jurisdie tion 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 or the Code have their effect and not in taking away the right of the Court to exercise its

inherent power.

There is nothing in Order 39 Rules 1 and 2, which provide specifically that a temporary injunction is not to be issued in cases which are not

mentioned in those mles. The rule only provide that in the circumstances mentioned in them the Court may grant a temporary injunction.

Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section

151 reads :

Nothing in this Court shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the

ends of justice or to prevent abuse of the process of the Court.

A similar question about the powers of the Court to issue a commission in the exercise of its powers u/s 151 in circumstances not covered by

Section 75 and Order 39 arose in Padam Sen and Another Vs. The State of Uttar Pradesh, , and this Court held that the Court can issue a

commission in such circumstances. It observed at page 887 (of SCR): (at p. 219 of AIR):

The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are supplementary tp those

powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the

exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature.

These observations clearly mean that the inherent powers are not in any way controlled by the previsions of the Code as has been specifically

stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly

provided in the Code or against the intentions of the legislature. This restriction, for practical purposes, on the exercise of those powers is not

because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by

the legislature for orders in certain circumstances is dictated by the interests of justice.

This shows that the courts have inherent powers, in order to advance the cause 'of justice and not to allow justice to be defeated, to issue,

orders in the nature of even injunctions under the inherent powers preserved for the courts by Section 151 of the Code of Civil Procedure, In view

of this clear pronouncement of law by their Lordships of the Supreme Court the argument of Mr. Sunder Lal that the court has no power to issue

stay of a suit under its inherent powers unless: the case clearly fell within the four corners of Order 39 Rules 1 and 2 is not correct.

There are some other authorities though not necessary to be cited but may be mentioned here, that throw direct light on the point in volved in

this case.

In AIR 1928 262 (Oudh) it has been held that the court is competent to strike put the defence of a Defendant for his persistent failure to

attend, under its inherent powers.

In H.S. Vodayar Vs. The Vijaya Bank Ltd. and Another, it has been held that a Mufassil court can under Order 21, Rule 58(2) and Sections

94(e) and 151 stay a sale in execution of a decree against the judgment-debtor spend in, the disposal of a suit under Order 21 Rule 63 by ii

claimant to the property; brought to sale against tin' claim order, on terms calculated not to injure the interests of the decree-holder.

In Naraharisetti Anjaneyalu Vs. Naraharasetti Vijayaraghavamma and Another, Kuppuswami Ayyar J. has laid down that the stay or passinu a

final decree pending disposal of appeal against the dismissal of application for setting aside an ex parte preliminary' decree can be ordered under

the inherent powers of a court.

In Bhame Amma Vs. Venkappa Bhatta and Others, it has been laid down that the court can order stay of delivery proceedings in execution of

a decree to which the applicant is not a party, if the party seeking the injunction is owner in possession of the property.

In 82 Pun Re 1910 in facts were that II. K. obtained a decree against BK in 1907, execution of which was stayed on appeal pending the

decision of a counter-case brought by BK against HK. BK's suit having been dismissed and an appeal preferred to the Chief Court, BK asked for

stay of execution of HK's decree of 1007, pending hearing of the-appeal in BK's ease. On these facts it' was held that since the passing of the

new; Code of CPC the dictum contained in Guest v. Mcgregor, 41 Pun Re 1904 was no longer applicable,;'' and that the order sought for could

De made u/s 151 of the Code.

In Umapati Choudhuri and Others Vs. Subodh Chandra Choudhuri and Others, it has been laid down that Order 39 does not exhaustively

deal with the matter of granting of temporary injunction. Apart from those provisions the- Court can grant temporary injunction in the exercise of its

Inherent Jurisdiction. Here the Court relied on. AIR 1917 Cal 44 which was a Full Bench case. AIR 1928 Mad 258 was dissented from. It was

further laid down to this authority that there was nothing in Section 56 to prevent the Court from restraining a party from proceeding with judicial

proceedings.

Kondapaneni Raghavaiah and Another Vs. Inguva Lakshminarayana and Another, it has been laid down that ""the High Court in exercise of its

inherent jurisdiction can stay not only the trial of an independent suit in the course of the proceedings pending before it, but also proceedings in

execution of a decree in an independent suit if it is in the interests of justice or to prevent abuse of the process of the Court and there is' no other

remedy available to the applicant. In order to attract the terms of Section 151 CPC two conditions have to be satisfied: (1) That the applicant for

stay has no other remedy in law which he case seek from a competent civil Court, and (2) that 'he stay has to be ordered in the ends of justice or

to prevent abuse of process of the Court. The mere fact that the suit, the trial of which is sought to be stayed, is an independent suit and is not in

any way connected with the suit under appeal is not a sufficient ground for denying the exercise of the, power u/s 151, Code of Civil Procedure.

These authorities clearly show that the, Courts have inherent powers to grant stay of certain ''judicial proceedings under their inherent powers

apart from the provisions of Order 39, Rules 1, 2 or Section 94 of the Code of Civil Procedure.

In the present' case us would appeal from the application which has been reflected by the trial Court, a certain execution proceeding is going

on in which the property attached is sought to be disposed of, by auction to meet the claim, of one of the, Respondents. The Plain tiff Petitioner has

'brought a suit under Order 21 Rule 63 wherein he claims that the property attached is his property and is not liable to attachment; In, a decree

against the other Respondents.

If the execution proceedings are-allowed, to continue, the 'result would be that the property attached must be finally sold. In that case,

obviously, to say the least, the least, the suit of the present Petitioner become in fructuous If he succeeds in the suit, the whole process, of the

execution, will have to be undone. There will be multiplicity of proceedings and as' apprehended by the Petitioner there may be 'great financial loss

in addition to loss of credit and reputation to him.

The trial Court had therefore the power and in the circumstances of the .case should have stayed the proceedings in the execution .application.

Its not doing so, is an erroneous,, exercise of , jurisdiction. The, High Court, as will be older from the authorities quoted above, particularly AIR

1955 Andhra has inherent powers. to pass an order to prevent the 'abuse of the process of the Court In JRJ opinion if the execution proceedings

are allowed to proceed, that will be a clear case of a"" abuse, of the process of the Court. The out of the trial, Court is therefore set aside and f

proceedings in the connected execution application Ghulam Mohd. Deay, Ghulam Ahme pending in the Court are stayed. The Respondents, will

pay costs of this petition to the Petitioner, Counsel's fee Rs. 25/-.