Madduri Padmavathi vs Chintala Abbai

Syed Shah Mohammed Quadri, J.—This C.R.P. is directed against the order of the learned Subordinate Judge, dated July 5,1993 in LA. No. 465 of 1993 in O.S. No. 40 of 1993 on the file of the Subordinate Judge, Peddapuram, granting stay of execution of the decree, obtained by her, in E.P. No. 3/91 in O.S. No. 27/87 on the file of the Sub-Court, Peddapuram.

Sri Ramachandra Rao, learned counsel for the petitioner, contends that the trial Court acted in excess of jurisdiction in granting stay of sale of plaint schedule property u/s 151 C.P.C. read with Section 94(c) having reached the conclusion that no order could be granted under Order 39 Rule 1 C.P.C. He urges that in view of Section 41(b) of the Specific Relief Act, 1963 no injunction can be granted restraining a person from executing the decree. Sri Subba Rao, learned counsel for the respondent, contends that the decree obtained by the petitioner is a collusive decree and the execution of such a decree will cause injury to the respondent, as such the respondent was entitled to the injunction restraining the sale or the property in execution of the decree. However, the learned counsel fairly concedes that the Order 39 Rule 1 and Section 94(c) are not two alternative heads under which injunction can be sought.

To appreciate the contentions of the learned Counsel, it would be necessary to refer to the relevant facts.

The petitioner was married to one Madduri Hanumantha Rao sometime in July, 1979. Alleging that her husband deserted her in September, 1979, she filed a suit, O.S. No. 27 of 1987 on the file of the Sub-Court, Peddapuram, for maintenance against her husband. That suit was decreed on August 31,1989. By the decree in that suit for payment of maintenance granted by the Court, a charge was created on item-2 of ''A'' schedule property therein, which is a house property bearing Door No. 10-10-25, Peddapuram Town and which is the subject-matter of the present litigation. In 1991 the petitioner filed E.P, No. 3/91. In execution proceedings the sale of the said house was scheduled to be held No. 15.6.1993. There was yet another litigation arising out of the alleged agreement for sale said to have been executed by the husband of the petitioner (Madduri Hanumantha Rao) and others in favour of Chunduru Venugopala Krishna and Chunduru Satyanarayana Murthy to sell the said house for a consideration of Rs. 39,000-00 on August 15,1977. For specific performance of the said agreement for sale, the said vendors filed O.S. No. 259 of 1980 on the file of Subordinate Judge, Kakinada. That suit was decreed ex parte on March 24, 1981. For execution of the decree passed in the said suit, E.P. No. 277/83 was filed. While so, the decree holder transferred the decree in favour of one Valluri Suryanarayana Chowdary. The said E.P. was dismissed for default on March 19,1990. Alleging that from the said Valluri Suryanarayana Chowdary, the respondent purchased the said house for a sum of Rs. 30,000-00, he filed O.S. No. 40/93 on the file of the Sub-Court, Peddapuram for declaration of his title to the said house and for injunction restraining the defendants from bringing to sale the said house in E.P. No. 3/91 in O.S. No. 27/87. The respondent filed LA. No. 465/93 in O.S. No. 40/93 u/s 151 read with Section 94(c) C.P.C. for stay of sale. This petition was allowed by the learned Subordinate Judge on 5.7.1993, which gave rise to this C.R.P.

The question which has to be considered is whether the order under revision suffers from any error of jurisdiction.

As the trial Court purported to grant the order under revision u/s 94(c) C.P.C, we shall first examine the provisions of that section.

Section 94(c) falls in Part VI of the CPC which deals with supplemental Proceedings and reads as follows:-

"94. In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed,-

(a) xx xx xx (b) xx xx xx (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

Section 94(c) provides that the Court may in order to prevent the ends of justice from being defeated, grant a temporary injunction if it is so prescribed and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold.

The expression prescribed is defined in Sub-section 16 of Section 2 in the following terms:

"Section 2(16) "Prescribed" means prescribed by rules."

By reading this definition in Section 94 what follows is that the Court may in order to prevent the ends of justice from being defeated, grant a temporary injunction if so prescribed by the rules. The rules are contained in first schedule to the CPC and are described as Orders 1 to 51. Each order comprises of various rules.

Order 39 deals with temporary injunction and interlocutory orders and the rules thereunder prescribe the procedure for exercise of the power conferred u/s 94(c) of the Code of Civil Procedure. Thus, it is clear that Section 94(c) and Order 39 are not two alternative sources of power.

Section 151 C.P.C. preserves the inherent powers of the Court by providing,

"Nothing in this Code 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."

It is now well settled that where Order 39 does not apply, the Court has inherent power to grant injunction in appropriate cases in exercise of inherent power u/s 151. See Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, ., & Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, .

The pre-conditions for exercising jurisdiction by the Court whether under Order 39 Rules 1 and 2 read with Section 94(c) or u/s 151, are: (i) the petitioner has made out a strong prima facie case; and (ii) the balance of convenience is in favour of granting an order thereunder. The power cannot be exercised by mere asking. If the Court grants an order without recording its finding on these preconditions, the order would suffer from error of jurisdiction. In the instant case the trial Court did not go into the question as to whether the petitioner has made out a strong prima facie case to entitle him to an order under Order 39 Rule 1 C.P.C. read with Section 94(c) C.P.C. or u/s 151 C.P.C. Indeed the Court recorded that no order could be granted under Order 39 Rule 1 but proceeded to pass an order Section 94(c) read with Section 151 C.P.C. on the ground that where Order 39 does not apply, Section 94(c) is attracted. Even if we assume that Section 94(c) is a mere mistake in quoting the provision of law and the order is treated as having been made u/s 151 C.P.C, the fact remains that the order under revision does not satisfy the requirements of a valid order u/s 151 C.P.C., inasmuch as the Court has not gone into the questions as to whether the petitioner has established a prima facie case and whether the balance of convenience lies in favour of the petitioner to entitle him to get an order of injunction restraining the respondent from bringing the suit property to sale in execution of the decree.

For these reasons, I am unable to sustain the order under revision; it is therefore set aside and the trial Court is directed to dispose of the LA. afresh in the light of the observations made above and in accordance with law.

The question raised by the learned counsel, Sri Ramachandra Rao viz., that in view of Section 41(b) of the Specific Relief Act, no injunction can be granted, is left open to be considered by the trial Court.

The C.R.P., is accordingly allowed, but in the circumstancesiaf the case, there will be no order as to costs.