Radhamohan Sundara Mohapatra vs Sura Dei and Another

J.K. Misra, J.—The petitioner is the auction purchaser of some landed property sold in am execution case as belonging to opposite party

no. 2. Opposite party No. 1 had filed a claim case in. the said execution proceeding claiming the same lands in her own right as having been

purchased from opposite party No. 2 prior to the attachment The claim petition of the opposite party No. 1 having then summarily rejected by the

executing court, she filed a suit for declaration of her right and for other reliefs, including permanent injunction restraining the auction purchaser

from taking possession. She also prayed for a temporary in junction restraining the petitioner from taking delivery of possession through executing

Court. An ad interim injunction was granted, and notice being issued to the petitioner he raised an objection against the order of interim injunction

on the ground that proper court-fee had not been paid in the suit.

The trial Court accepted the petitioners contention that proper court-fee had not been paid, and so passed an order asking the plaintiff to pay the

deficit court-fee by a particular date and directing that the ad interim order of injunction would become absolute if the court fee was paid by that

date, and would stand vacated if the same was not paid. nO COURT-FEE was actually paid by the date fixed for the purpose. Against the order

of the trial court, the plaintiff came in appeal, and the learned District Judge held that the continuance or termination of the order of injunction

should not have been made dependent on the payment of court-fee, which was a completely distinct matter, and made the order of injunction

absolute. It is against this order that the present petition in revision has been filed.

The learned counsel for the petitioner conceded that payment of proper court-fee had no bearing on the injunction matter, and so he did not

seek to challenge the propriety of the appellate Court''s order from that aspect. His contention however, was that Order 39, Rule 1 Civil

Procedure Code, as amended by the Patna High Court took away the power of the Court in such at case to grant the temporary injunction. The

second proviso to Order 39, Rule 1 (as amended by the Patna High Court) is,

Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession, shall not be granted except in.

a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the

attachment preceding it, before the court executing the decree.

Such a contention had not been raised either before the trial Court or the Court of appeal.

The reply of Mr. Sahu for opposite party no. 1 is that the said amendment of the Patna High Court to Order 39, Rule 1 CPC is ultra vires, since

it does not come within the rule making power of the High Court, as provided by Sections 122 and 128 Civil Procedure Code. Mr. Sahu''s

contention is that the rule nuking power of the High Court as provided in Section 122 CPC is intended to regulate the procedure of the High Court

or the subordinate Court, and it is not intended to take away any substantive right of the party, which could only be done by legislature. According

to him, since a party is shut out from seeking any relief in interim injunction by the said proviso, the said proviso is not strictly a rule regulating the

procedure of the Court.

In support of his contention, Mr. Sahu sought to rely on a Full Bench decision of the Rangoon High Court reported in AIR 1937 Rang 419

Chettyar firm v. Central Bank of India Ltd. That case related to a matter not covered by Order 39 Rule 1, but one covered by Order 21, Rule 90

Civil Procedure Code. The Rangoon High Court had added a proviso to Order 21, Rule 90 providing that no application to set aside a sale shall

be admitted unless the applicant deposited with his application the amount mentioned in the sale warrant or an amount equal to the amount realised

by the sale, whichever is less. Their Lordships of the Rangoon High Court observed.

No one is to be deprived of his property in any judicial proceeding unless he has an opportunity of being heard. The only valid rules which can be

made by the High Courts under the provisions of Section 122 Civil Procedure Code, which confer the rule making power, must regulate the mode

of proceeding to enforce a legal right, and cannot stray beyond it. Order 21, Rule 90, proviso (b), CPC seeks to take away an existing right,

namely the right of being heard to impeach a sale in execution subsisting in a person whose interests are affected by it unless he is able and willing

to deposit with his application the amount mentioned to the sale warrant or an amount equal to that realised by the sale, whichever is less. This

proviso does not regulate the procedure by which the rigut can be enforced and it is therefore invalid as ultra vires the Rule making Committee of

the High Court. The Legislature may take away common law right, but the Court, by virtue of its rule making power, certainly cannot A ""matter of

procedure"" means the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right.

Section 122 CPC provides that the High Courts may make rules regulating their Own procedure and the procedure of the Civil Courts subject

to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. Section 128 CPC provides that

such rules shall not be inconsistent with the provisions in the body of the Code, but Subject thereto, may provide for any matters relating to the

procedure of Civil Courts. Section 127 CPC provides that rules so made and approved shall, from the date of publication or from such other date

as may be specified, have the same force and effect as if they had been contained in the First Schedule. In view of the wide scope of Section 122

Civil Procedure Code, under, which any and every rule in the first schedule can be annulled, altered or added to by the High Court, every rule in

the schedule is a rule relating to procedure, and there is no apparent justification for taking the narrow interpretation given to a ""matter of

procedure"" by the Rangoon High Court The Court''s power to change any rule in the Schedule is limited by Section 128 CPC to the extent that the

rules made by the High Court annulling, altering or adding any rule shall not be inconsistent with the provisions of the. Code, and there is no

contention in the present case that the Patna amendment offends any such provision.

From the provision of Section 127 CPC it appears, that the rules added to by the High Court shall be treated as if they had been contained in the

First Schedule, which in directly means that they shall be treated like the rules as framed by the Legislature itself. From the said provision, my

opinion is that in matter of any rule under the First Schedule, the rule framed by the High Court is intended to be as effective as the rule framed by

the Legislature. As to the Rangoon High Court''s view that by such limitations a common law right was being taken away, my humble opinion is

that there is mo common law right with a litigant to ask for a temporary injunction. That right itself has. been (prescribed by Order 39, Rule 1 CPC

and if by amending Order 39, Rule 1 that right is restricted to some class of persons no common law right of the litigants, who are excluded from

the benefits of Order 39, Rule 1 CPC is affected. No doubt, in Section 53 of the Specific Relief Act, it is provided:

Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period

of a suit, and are regulated by the Code of Civil Procedure.

This provision by itself imparts no right in a temporary injunction independent of Civil Procedure Code, and it only describes what a temporary

injunction is and what can be its duration.

The Full Bench decision of the Rangoon High Court was considered by a Full Bench of the Patna High Court as reported in Babu Upendra Nath

Basu Vs. Pandaya Gulab Sarkar, . The Patna amendment of Order 21, Rule 90 corresponding to the Rangoon amendment--was to the effect that

no application to set aside a sale shall be admitted unless the applicant deposit''s with his applications such amount not exceeding 12 1/2 per cent

of the sum realised by the sale or such other security as the Court may in its discretion fix, unless the Court for reasons to be recorded, dispenses

with the deposit. Their Lordships observed that the said provision was a matter of procedure and being a matter of procedure, it is within the

powers of the High Court u/s 122 Civil Procedure Code.

The CPC itself, as its preamble shows, relates to the procedure of the Civil Judicature. The wording of Section 122 CPC also suggests that the

rules in the First Schedule all relate to the procedure, otherwise the last portion of Section 122 Civil Procedure Code, which says ""may by Such

rules annul, alter or add to all or any of the rules in the First Schedule will hardly fit in with the context."" As regards the theory of common law right

raised by the Rangoon, High Court, their Lordships observed,

In India a litigant has no right under the common law to set aside a Court sale. The right to set aside such sale does not exist apart from the

provisions of the Statute under which the sale is held and therefore the right to set aside a sale under the CPC does not exist apart from the

provisions of that Code.

With the aforesaid observations of the Patna Full Bench, I respectfully agree. So, I hold that the contention of Mr. Sahu, that the proviso to Order

39, Rule 1 CPC is ultra vires, is of no force.

In the result, the revision is allowed, and the order of injunction is vacated. In view of the fact that the petitioner succeeded on a point, which

had not been raised in the Courts below, it is directed that such party will bear his costs throughout.