Habib Dar vs Mohd.Akbar

Heard Mr. Khan.

Mr. Khan projects that a suit was instituted in the court of SubJudge, Kupwara wherein interim direction was passed, which interim direction

was being flouted time and again by the respondents/nonapplicants which constrained the court of SubJudge, Kupwara to pass an order on

3151994 to appoint a receiver of the property and to take the property in dispute in receiver ship only to see that the orders passed by the court

were being adhered to and respected, which allegedly were being flouted with impunity by the respondents.

Mr. Khan submits that this order was passed by the learned court by virtue of the powers vested in it under section 151 CPC, as the language

of the order also suggests like that. His further contention is that as because the order passed by learned SubJudge on 13519 94 was an order

passed under the discretionary powers vested in him under Section 151 C.P.C., no appeal or revision would lye against such an order, but even

then appeal seems to have been preferred before learned District Judge, Kupwara who has passed the impugned order on 1571994 and it is

against this order, which has been passed by learned District Judge which is subject to objections of other side, that the present revision petition

has been filed.

After hearing learned counsel for the petitioner and also going through the order passed by learned SubJudge and the impugned order passed by

learned District Judge, Kupwara, I bring it on record that the order passed by learned District Judge on 31 51994 is not an order passed under the

provisions of Section 151 Civil Procedure Code i.e. the order is not one which is said to be passed under inherent powers of the court. The order

is covered under Order 39 Rule 7 which reads:

1) the court may, on the application of any party to a suit, and on such terms as it thinks fit,

a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, as to which question may

arise therein;

b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to

such suit; and

c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may

seem necessary or expedient for the purpose of obtaining full information or evidence.

So it is under this provision of Order 39 Rule 7 of Civil PC. that the order dated 3151994 has been passed by learned SubJudge Kupwara in

order to see that the order of injunction passed by the learned court is adhered to and is not flouted by the respondents, and such an order is

challangeably by the aggrieved party before the higher forum. Though the respondents herein have filed an appeal before the learned District Judge,

Kupwara who has passed the impugned order which is being challenged before me in this revision petition. The order impugned is subject to

objections of other side. Prima facie there is no illegality or irregularity committed by the learned District Judge in passing the impugned order.

For the foregoing reasons, the revision petition is dismissed in limine with the direction to the petitioner that he will approach the learned District

Judge and file his objections and project his case there. The revision file be consigned to records.

Before parting with the file, it is brought on record that the observations made hereinabove shall not prejudice the parties in projecting their

respective legal stands on the point at issue.