K.P.M. Aboobucker vs K. Kunhamoo and Others

P. Rajagopalan, O.C.J.

This is an appeal against the order of the Additional City Civil Judge, Madras, passed on an application preferred under Order 39, Rule 1, Civil

Procedure Code, in O.S. No. 1119 of 1955, refusing to grant the interim injunction asked for by the appellant, the petitioner in the lower Court,

against the contesting respondent, the decree-holder in C.S. No. 228 of 1954. It should be convenient to refer to the decree-holder in C.S. No.

228 of 1954 as the respondent in the rest of this judgment.

I shall first set out the relevant details of what preceded this appeal. Abdulla carried on business in timber. It was common ground that he had

business dealings with the respondent for a number of years. Abdulla died in 1939, leaving behind him his widow and six minor children, three

daughters and three sons, of whom, the appellant was one. He also left behind a comparatively large extent of properties including the business in

timber. Abdulla''s brother Ummerkutti claimed that the business in timber that Abdulla carried on was a ""partnership concern, in which the brothers

were partners. In the arrangements made subsequent to the death of Abdulla, his minor children were represented by their mother as their

guardian. It may not be necessary to set out all the details of this arrangement or their validity. They constitute the subject-matter of O.S. No. 1119

of 1955, which still remains to be disposed of. After 1941 the business was carried on by Ummarkutti and Kunhamoo in partnership. Kunhamoo,

the eldest of the sons of Abdulla, had by then become sui juris. It should be convenient to refer to Ummarkutti and Kunhamoo as defendants 1 and

2 respectively in the rest of this judgment; they were so arrayed in O.S. No. 1119 of 1955. During the pendency of that suit the first defendant

died. The claim of the first defendant in the suit was that in the arrangements that ensued the death of Abdulla; the business and some other assets

of Abdulla were allotted to the share of defendants 1 and 2. One of the daughters of Abdulla filed a suit for partition, C.S. No. 271 of 1952, on

the Original Side of this Court, which was subsequently transferred to the City Civil Court and numbered as O.S. No. 1119 of 1955. The

appellant who was impleaded as defendant 5 supported the claim of the plaintiff in that suit. There the plea was that none of the children of Abdulla

who were among his heirs was bound by the arrangements made during their minority by their mother, who was not their legal guardian. The suit

was for the partition of the assets of the deceased Abdulla including the business in timber which was claimed to be the sole concern of Abdulla, in

which his brother, the first defendant, had no share. On 13th March, 1953, defendants 1 and 2 were appointed Receivers in that suit, among other

things to conduct the business which was a running one. I have set out these details, on which the learned Counsel for the appellant relied to

support his plea, that there was enough to show prima facie that the appellant has rights, though they have yet to be adjudicated upon, in the

properties of Abdulla..

The first and second defendants, it should be remembered, carried on the business after 1941. They were indebted to the respondent on the

dealings between them. The respondent supplied timber for their trade even as he had been supplying material during the lifetime of Abdulla.

Defendants 1 and. 2. created an equitable mortgage over two sets of immovable properties in favour of the respondent in 1950. It was common

ground that these properties also were claimed to be properties of Abdulla, in which his heirs claimed their respective shares in O.S. No. 1119 of

1955. The respondent filed C.S. No. 228 of 1954 in the High Court on its Original Side and eventually obtained a decree for the sale of the

hypotheca. Before instituting C.S. No. 228 of 1954 the respondent obtained leave of the High Court for suing defendants 1 and 2 who had been

appointed by that Court as Receivers in the partition suit. That leave ,however, was obtained without notice to the parties in the partition suit other

than defendants 1 and 2.

Though the respondent knew of the pendency of the suit for partition which had been instituted in 1952, itself, he did not have the heirs of

Abdulla impleaded in his suit on the mortgage. The appellant was thus not a party to the decree in C.S. No. 228 of 1954 Similarly the respondent

even after he obtained a decree in C.S. No. 228 of 1954, was not impleaded as a party defendant in O.S. No. 1119 of 1955. I must make it clear

that these are only factual statements, and that I am not concerned now with the question whether they were necessary or even proper parties or

not in the respective suits.

In execution of the decree in C.S. No. 228 of 1954 the respondent as decree holder brought; the hypotheca to sale. The sale was proclaimed

to be held on 17th October, 1957. The appellant applied to the learned Additional Judge on 27th September 1957, for the issue of an interim

injunction to restrain the respondent from bringing the property to sale. The application itself was in proceedings in O.S. No. 1119 of 1955, in

which it should be remembered the respondent was not a party defendant. The learned Additional City Civil Judge dismissed that application on

2nd November, 1957, principally on the ground that the decree in C.S. No. 228 of 1954, in execution of which the property was brought to sale,

was not a wrongful decree. The learned Judge was obviously of the view that that failed to satisfy the requirements of Order 39, Rule 1(a), Civil

Procedure Code. The appeal before us is against that order.

During the pendency of this appeal, by an order of Ramaswami, J., in C.M.P. No. 7655 of 1957, dated 25th November, 1957, though the sale

itself was not stayed, confirmation of the sale was stayed till the disposal of. this appeal. The adjourned sale was held on 11th December, 1957,

the date on which the appeal first came on for hearing before us. It was represented to us that the first item was sold, and that in the absence of

bidders the second item was not sold. I have set out these facts only to complete the narrative, though it may have no bearing on the determination

of the main question in controversy between the parties.

What was argued at length before us was whether the Court has jurisdiction during the pendency of the suit, O.S. No. 1119 of 1955, to grant

an injunction under Order 39, Rule 1(a), Civil Procedure Code, against the respondent, who was himself not a party to that suit. The learned

Counsel for the respondent contended that Order 39, rule 1(a), did not confer such a jurisdiction. The learned Counsel for the appellant pointed

out the difference between the language of Rule 1(a) on the; one hand and that of Rules 1(a) and 2(1) of Order 39 on the other and urged that the

scope of Rule 1(a) was larger and included within it persons who were not themselves parties to the suit in which the interim injunction was sought.

The learned Counsel submitted that unlike Rule 1(b) and Rule 2(1), Rule 1(a) of Order 39 did not in express terms restrict the issue of an

injunction only against the defendant in the action.

In neither Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85, nor Sankara Aiyar v. Muhammad Gani Rowther (1935) 70 M.L.J. 257 :

ILR 59 Mad. 744, in which a Division Bench approved of what was laid down by Phillips, J., in Varadacharyulu v. Narasimhacharyulu (1925) 23

L.W. 85, to both of which the learned Additional City Civil Judge referred, did the question arise in the form in which it arises before us, whether

the words "" danger of being wrongfully sold in execution of a decree "" as they occur in Rule 1(a) of Order 39 are wide enough to include within

them an interim injunction directed to a person who is not himself a party to the main suit.

In Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85, the injunction sought was against the defendant in that suit, to restrain him from

executing a decree obtained by him against the plaintiff''s father. Phillips, J., observed:

It is now contended that such an injunction will come under Order 39, either rule 1, or Rule 2. It certainly cannot come within the language of Rule

1, for there is no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated.

The learned Judge held further that the claim of the plaintiff in that suit would not fall within the scope of Rule 2 either. It was with reference to Rule

2 that the learned Judge pointed out:

It is then argued that Rule 2 would be applicable and that this is an injunction to restrain the defendant from committing '' other injury of any kind''.

The alleged injury is the execution of a decree lawfully obtained. In order to hold that that does constitute an injury, it is necessary to hold that the

decree is illegal, for, if the decree is legal, the defendant has every right to execute it and in doing so he cannot be said to commit any injury.

The learned Judge did not refer to the other class of cases for which also Order 39, rule 1(a) provided, where the property in dispute in a suit is in

danger of being wrongfully sold in execution of a decree. Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85 cannot therefore be really

looked upon as having decided what constitutes danger of a property being wrongfully sold in execution of a decree.

In Sankara Ayyar v. Muhammad Gani Rowther (1935) 70 M.L.J. 257 : ILR 59 Mad. 744, the head-note ran:

In a mortgage suit by the appellant against the respondents and in a partition suit by the latter against the former a common issue was raised as to

whether the mortgage sued upon by the appellant was binding on the shares of the respondents. The decision on that issue in the partition suit was

agreed by the parties to be taken as the decision on the issue in the mortgage suit. In the partition suit the mortgage was declared binding on the

shares of the respondents and a decree by consent was accordingly passed in the mortgage suit against their shares. There was no appeal against

the decree in the mortgage suit but an appeal was presented to the High Court against the decree in the partition suit. The respondents applied to

the High Court under Order 39, Rule 1, of the Code of Civil Procedure, for an injunction restraining the appellant from bringing the property of the

respondents to sale in execution of the decree in the mortgage suit pending the appeal in the partition suit.

Held, that the injunction applied for could not be granted.

Thus the position there also was that the person who sought the injunction and the person against whom that injunction was sought were parties

to the litigation during the pendency of which that interim injunction was asked for. Beasley, C.J., pointed out:

This is not a case where the property of somebody not a party to the decree is in danger of being sold and that person comes forward with a claim

that it is his property and cannot be sold.

The case before us is something like that which the learned Chief Justice was not called upon to consider in Sankara Ayyar v. Mohammad Gani

Rowther (1935) 70 M.L.J. 257 : ILR 59 Mad. 744.

In Sankara Ayyar v. Muhammad Gani Rowther (1935) 70 M.L.J. 257 : ILR 59 Mad. 744, the learned Chief Justice observed, at page 261:

I very strongly take the view that, when a decree has been passed against a party who is himself seeking to obtain an injunction, the Court has no

jurisdiction whatever, merely because an appeal is pending in another suit, to grant an injunction on the ground that the property is in danger of

being wrongfully sold in execution. If the other view were correct, then the appellant would have a greater remedy in such cases, i.e., an injunction,

than he has in the suit under appeal. Whilst the decree remains unreversed, it is a good decree and all steps in execution of it are perfectly legal.

Whether it was really a case of jurisdiction or one of discretion, the scope of both of which was governed by Order 39, Rule 1(a), and whether the

proposition laid down by the learned Chief Justice in the first sentence of the passage I have extracted above is not too wide as it stands, if taken

out of its context, may have to be considered should occasion arise for it. However, if I may say so with respect, I find myself in complete

agreement with the principle that underlies the second sentence in the passage I have extracted above, that an interim relief granted during the

pendency of a suit should not be of greater scope than what could be granted in the suit itself, after the party has established his right in the suit to

that relief. In my opinion, that would be a very relevant factor to be taken into account in deciding whether a Court should or even could grant such

an interim relief, especially so when the person against whom the interim injunction is sought is not a party to the suit, and against whom no relief

could be granted in the suit itself.

Since in my opinion the disposal of the appeal before us can be rested on a fairly narrow basis, I do not consider it necessary to refer to the

other cases cited during the arguments before us. My attention was not drawn to any reported case where a person successfully claimed an

injunction against one who was himself not a party to the suit or a person who did not claim under a party to this suit, during the pendency of which

such an injunction was sought.

The learned Counsel for the appellant urged that what Order 39, Rule 1(a) required was that with reference to the property in dispute in a suit

there is a danger of that property being wrongfully sold in execution of a decree. His further submission was that what was postulated was that the

execution should be wrongful and not that the decree itself had been wrongfully obtained. He realised that there was no allegation in the plaint in

O.S. No. 1119 of 1955 that the respondent had committed any wrong in obtaining the decree in C.S. No. 228 of 1954. In fact, there was no

reference at all to the mortgage or the decree in the plaint in O.S. No. 1119 of 1955- I shall assume for the present that the mortgage decree itself

was not wrongfully obtained, but that the execution of that decree would be wrongful, in the sense that it would affect adversely the right the

appellant claimed in the property brought to sale. It is not quite necessary to decide that question in these proceedings. Even so, the question

remains, whether in the circumstances - of this case, the appellant is entitled to the relief of interim injunction that he seeks.

Apart from the fact that the respondent was not a party to the partition suit (O.S. No. 1119 of 1955) none of the parties to that suit including

the appellant asked for any relief in that suit with reference to the mortgage effected in favour of the respondent in 1950 by defendants 1 and 2.

That is still the position even after Rajagopala Ayyangar, J., pointed out in the course of his judgment in C.S. No. 228 of 1954:

In the written statement...it is stated that the decree here should make it clear that in the event of C.S. No. 271 of 1952 (O.S. No. 1119 of 1955)

succeeding the liability for the suit claim should be shared by all the other heirs who would get an interest in the firm....The liability in this suit is

admittedly a liability of the firm which is clear by the Receivers being impleaded in the suit and the claim of the Plaintiff in C.S. No. 271 of 1952

(O.S. No. 1119 of 1955) is merely a right to the assets of the firm. Those assets would be ascertained only after the debts by the firm are

discharged, and there cannot be any claim to the assets of the firm before this decree is discharged. In these circumstances, I consider that it is not

necessary to introduce any reservation in the judgment to clarify the position.

Whether the decree in the mortgage suit is one that would not bind the shares, if any, of those other than defendants 1 and 2 in the suit properties,

is not, as I understand it, one of the issues that has been raised for determination in the partition suit, independent of the question, whether the

determination of such an issue in that suit would bind the respondent who was not a party to that suit. Therefore, no question could arise in the

main suit itself of the grant of even a declaration, that the mortgage decree was not binding on the heirs of Abdulla, including the appellant.

An interim relief is granted to a person on the footing that that person is prima facie entitled to the right, on which is based the claim for the

main relief as well as the interim relief. That relief is granted as an interim measure till the disposal of the suit, in which is to be investigated the

validity of the claim of right that has been put forward. If no such claim has been put forward in the suit, it means that there can be no occasion for

investigation of such a claim in the suit, there can be no justification for the grant of an interim relief which will just lapse on the termination of the

suit, but which will leave the parties in the same position in which they were before the institution of the suit, in the course of which the interim relief

was sought and obtained. That, as I conceive it, is not the scope of Order 39, Rule 1(a) , Civil Procedure Code. In the present case the rights of

the respondent, the decree-holder in C.S. No. 228 of 1954, will remain unaffected by the disposal of the partition suit, O.S. No. 1119 of 1955.

Under such circumstances where no relief could be granted to the appellant against the respondent in the main suit itself, it is not permissible to

grant any interim relief, to be operative till the disposal of the suit. Even were it only a question of discretion, I should hold that in such a case the

Court should exercise its discretion against the grant of interim injunction. I would go further and hold that the Court has no jurisdiction to grant by

way of interim relief what could never be granted in the main suit itself. It is on this basis that I rest my decision to confirm the order of the learned

Additional City Civil Judge, who refused to grant interim injunction for which the appellant-petitioner applied.

This appeal is dismissed with costs.