M.E. Singaravelu Mudali and Another vs Balasubramania Mudali and Others

Ramesam, J.—This is a petition praying for an injunction restraining the respondent from executing the decree in O.S. No. 41 of 1924 on

the file of the District Court of South Arcot pending disposal of Civil Revision Petition No. 1372 of 1925 on the file of the High Court. The facts

are as follows: There was a suit for partition in the Sub-Court of Chingleput. This was O.S. No. 3 of 1916. On the 6th of March, 1917, a

preliminary decree was passed in it. The present petitioner was one of the plaintiffs in it. After the preliminary decree, the 3rd defendant in the suit

filed O.S. No. 41 of 1921 in the District Court of South Arcot at Cuddalore to recover a sum of money from the petitioner and others. The

disputes between the parties were settled by a compromise drawn up in the form of two agreements dated 6th October 1922, according to one of

which a decree was to be passed in the Cuddalore suit for Rs. 9,000, Rs. 2,000 of which was to be paid within two weeks and the balance in 9

months. Under the other it was arranged that a fresh allotment of the property should be made in the final decree at Chingleput in such a way as to

cover the payment of Rs, 7,000 to the decree-holder in the South Arcot suit.

Accordingly a decree was passed in the Cuddalore Court for Rs. 9,000 and the amount which had to be paid within two weeks after the decree

was also paid. What remained to be done was that the re-allotment of the properties in the Chingleput Court was to be made and when this was

brought to the notice of the Cuddalore Court the Cuddalore Court had to enter satisfaction of the money decree. Obviously, the provision for the

payment of the balance of the Cuddalore decree was a surplusage as the decree was intended to be satisfied by re-allotment of properties. On the

12th of July 1923, an application to record the compromise was filed in the Chingleput Court; but this petition was overlooked and a decree was

passed in pursuance of the original preliminary decree--the petitioner applied on that very day to make the necessary corrections in the decree but

it could not be ordered as the respondent was absent. Afterwards respondent appeared and opposed the passing of the decree, but the

Subordinate Judge after full enquiry passed an order in favour of the petitioner. On appeal to the District Judge-I doubt if any appeal lay to the

District Judge against the order allowing the amendment as the respondent''s remedy would be to appeal against the amended decree -- the

District Judge found all points in favour of the petitioner but allowed the appeal on the ground that the petitioner''s remedy was to bring a fresh suit.

A Civil Revision Petition, has been filed against the District Judge''s order on the ground among other grounds that the District Judge bad no

jurisdiction to pass the order he has passed. The Revision Petition has been admitted by Wallace, J., who also ordered notice on the petition for

injunction. This petition for injunction now comes on before me for final disposal. As I think there are good grounds in the revision petition I am

inclined to issue an injunction provided I have got the power to do so. The respondent contends that I have no power,

Now, it is conceded by poth parties that as the practice of this Court stands, the High Court has power to stay execution or issue an injunction

in revision petitions provided it can do so in second appeals. If the matter before me is a second appeal from the Chingleput Court and I have the

power to issue an injunction, certainly I can issue an injunction also in a revision petition. Again, if the Sub-Court has power to issue an injunction,

the High Court has also the same power. This is also practically conceded by the respondent. The contention of the respondent is that neither

Order 39, R 1, nor Rule 2, applies to the case and the Sub-Court could not have issued any injunction, and, therefore, I cannot. He contends that

Order 39, Rule 1 does not apply as no property is now sought to be attached in execution and no property is in danger. In the Cuddalore Court

what is sought now by the respondent is the arrest of the petitioner. He also contends that the terms of Order 39, Rule 2, do not apply. It seems to

me that after the filing of the compromise petition in the Chingleput Court the nature of that suit is slightly altered. It was originally a suit for

partition. The effect of the compromise was to add something to its character. Not only was it a suit for partition, but it was also a suit to enforce a

contract between the parties to make the partition in a particular way. From the time the compromise petition was filed in Court all the efforts of

the petitioner amount to enforcing the covenants of the compromise, or in other words the petitioner as plaintiff in the Chingleput suit seeks to

restrain the defendant from committing a breach of contract. Therefore, I think the terms of Order 39, Rule 2 apply.

Mr. Sesha Ayyangar for the petitioner referred to a number of cases which show that in such matters the civil Court has an inherent power to

issue an injunction restraining a party from proceeding with another suit in another Court. I have not referred to these cases in detail as one of the

objections of the respondent is baaed on the contention that neither Order 39, Rule 1, nor Rule 2, applies. But I must state that I do not see any

difference between proceeding with another suit or proceeding with the execution of the decree in another suit. I, therefore, think that the cases

cited do apply. I will only instance the decision in Kumar Ganga Singh v. Pirthichand Lal AIR 1922 Pat 34. I think I have the power to issue an

injunction restraining the respondent from executing the decree of the Cuddalore Court in breach of the covenants of the compromise under which

the properties are to be re-allotted in a certain way at Chingleput and on the matter being reported to the Cuddalore Court the satisfaction of the

decree of that Court should be entered, and I accordingly direct such an injunction to issue.