Mahanth Ramkeshwar Das vs Baldeo Singh

Wort, J.—This appeal is directed against the order of the District Judge allowing; an appeal against the decision of the Subordinate Judge who had granted an injunction restraining the respondent who opposes this rule from taking delivery of possession. We are not in the least concerned with the facts of the case excepting to state that the respondent had had a decree under which he was entitled to sell and take delivery of possession, which he did. I am informed at the Bar that the interim injunction granted by this Court was granted after delivery of possession had been actually effected. Although that may be so, I think without some very definite knowledge on that point it would be unsafe to decide this case on that question. I take a very strong view of this matter, because it always seems to me that it is impossible to contend that the person who has got a decree and is entitled to execute it, can be said to be wrongfully selling in execution! because some other person has brought an action through which he hopes to succeed in getting possession of the property which is being sold.

But there seems to be other matters which stand in the way. The plaintiff-petitioner before me refers to the new provision added under Rule 1 of Order 39 to the effect "no such temporary injunction shall be granted if it would contravene the provisions of Section 56, Specific Belief Act." It is said that it does not come into operation until the first day of this year. It may have been necessary to incorporate this rule in order to bring it to the notice of the subordinate Courts, but the Proviso added nothing to the law governed by the Specific Relief Act, and whether the Proviso had been added to Order 39, Rule 1 or not, the position would have been the same.

This can be seen from the decision of a Full Bench of the Calcutta High Court in Dhuronidhur Sen v. Agra Bank Ltd. (1879) 4 Cal. 380 where a point was discussed which in my judgment is relevant in this case. Section 56(b), Specific Relief Act, provides that

an injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought.

In this country an injunction when issued: is issued against an individual prosecuting j his case in a Court; and, if an injunction were granted in this case it was an injunction granted against the litigant and not against the Court. There is no method in India by which an injunction could be directed to a Court in contradistinction to the persons or parties prosecuting their litigation in that Court. The Court in the present case in which execution was being taken out was the Court of the Subordinate Judge.

The application for this injunction was made in the same Court and in my opinion the application would not lie.

In support of that view I would refer to the decision in Dhuronidhur Sen v. Agra Bank Ltd. (1879) 4 Cal. 380 to which I have already made reference. It is true that the Judge in the Court below has come to the conclusion on one part of the case that on the balance'' of convenience the injunction might have been granted. It is impossible to say that that is his conclusion, having regard to the Judge''s statement in the last part of his judgment to the effect: "But the status quo has already been altered by the sale" and in those circumstances an injunction could not be granted.

There is no question of jurisdiction arising in this application, although I have discussed certain points which might have arisen in the case and which to some extent are relevant for the purposes of my decision. The rule must be discharged; hearing fee two gold mohurs.