Dalip Narayan Singh and Another vs Smt. Amarbas Kuer and Another

Wort, J.—This is an appeal against the decision of the Subordinate Judge granting an interim injunction in the following circumstances. The present appellants obtained a decree against the husbands of the respondents in the year 1933 and in execution of that decree put up certain property to sale. That property at one time undoubtedly was the property of the respondents they having inherited it under the will of their father, but in 1914 by a deed of gift made it over to their husbands. Their case now is that the deed was a fraudulent transaction; they were under the domination of their husbands; and they were not in a position, nor did they understand the quality of their act in executing the deed of gift. In 1932 a person who is not before the Court obtained a mortgage decree with regard to this property as against both the husbands and their wives. After the property was attached and put up for sale in execution of the mortgage decree a claim ease was lodged by the respondents; it failed and then the respondents brought an action in which this interlocutory injunction was granted. The learned Judge in the Court below, after having discussed all the facts and certain questions of law has stated his reasons for granting the injunction against the present appellants in the following words:

The balance of convenience also lies in their favour because if the properties be auction-sold and happen to be purchased by a third person, the plaintiffs in case of their success in this suit, will have to fight with the purchaser. If the sale is postponed, defendants 1 and 2 do not suffer any loss because the decree under execution provided for payment of future interest at 6 p. c. p. a. till the date of realization.

I fail to follow the reason of the learned Judge. The question that he had to determine was whether within the meaning of Clause (a) of Order 39, Rule 1, the property which is the alleged property of the respondents has been wrongfully sold in execution of a decree. It seems to me to be impossible to answer a question put in that form in the affirmative. The property was alleged to be the property of the judgment-debtor, the appellants were selling it as the property of the judgment-debtor, and added to it a claim case made by the respondents failed. We cannot assume merely because the respondents had commenced an action that their action was going to succeed. It is only in the event of success, which as I have said we cannot anticipate, that it could be held that the appellants were wrongfully selling in execution.

If we are to accept the argument presented to us by Mr. Nandkeolyar we should have read the words of the Code to which I have just referred as ''possibly wrongfully or probably wrongfully sold in execution'' which it is impossible to do. It has to be remembered that this Court will not interfere in the exercise of a discretion by a Court in a matter of this kind so long as the discretion is exercised judicially. But when one comes to examine the reasons of the learned Judge, it will be seen, in my opinion, that the Judge at any rate has not exercised his discretion rightly.

If it comes to a question of convenience there can be no doubt about the matter. If in fact the property sold belongs to the respondents, no title will be given to the auction-purchaser. If an injunction is granted, prohibiting the present appellants from executing their decree by sale of this property they will be kept out of the fruits of the judgment so long as the claim case is proceeding through the trial and various Appellate Courts. That is what happens and in all probability will happen to this case. I do not think there can be any doubt that both on the question of law and. on the balance of convenience the Judge is in error.

For those reasons I would allow the appeal and discharge the injunction with costs.

Manohar Lall, J.

I agree. The only difficulty which I have felt in this case is due to the observations in some Calcutta cases which have been considered in Sankara Ayyar v. Muhammad Ganni A.I.R.1936. Mad 276 which apparently lay down that the provisions of Order 39, Rule 1, Civil P.C., can be invoked in circumstances such as the present. Without attempting to reconcile the various contradictory decisions which cluster round this question, it is enough to say that I do not find on a plain reading of the words used by the Legislature in Order 39, Rule 1, which runs as follows (so far as it is relevant to the present case):

Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted...or wrongfully sold in execution of a decree.

that they can be applied to a case where the decree-holder has a good decree against his judgment-debtor which he is executing against that judgment-debtor in a proper proceeding and somebody else institutes a suit, after being defeated in his claim case, that the property is his and not that of the judgment-debtor and then asks for a temporary injunction on the ground that his property is being "wrongfully "sold in execution of a decree; it is difficult to see how the property is, at the moment of his application to the Court, in danger of being wrongfully sold in execution of the decree. It may be that the Court will invoke its inherent powers to stay the execution of the decree if the circumstances are so coercive that the balance of convenience is in favour of the appellants or that a stay is necessary to prevent an abuse of the process of the Court.

Upon the facts which have been found in this case, as pointed out by my learned brother in his judgment just delivered, I do not see that the balance of convenience is at all in favour of the respondents.

I therefore agree that the appeal should be allowed with costs.