Ram Chand and Another vs Mahesh Chand Gupta and Others

R.A. Misra, J.—Sri Ram Chandra and Shyam Lal have preferred this second appeal against the judgment and decree dated 12th October 1973 passed by Sri Bhanwar Singh VII Additional District Judge, Agra, dismissing Civil Appeal No. 211 of 1981 and thereby confirming the judgment and decree dated 18th July 1981 passed by Munsif Fatehabad, Agra dismissing the Plaintiff-Appellants'' suit No. 204 of 1980 under Order VII Rule 11 of Code of Civil Procedure.

This application in second appeal has been moved for stay of the execution of the decree passed in another Suit No. 1700 of 1973. Proceedings under a decree or order appealed from may be stayed under Rule 5 of Order XLI CPC But it is not possible to stay the proceedings under a decree or order against which the present appeal has not been preferred. It is, therefore, clear that the execution of the decree passed in Suit No. 1700 of 1973 cannot be stayed under the provisions of Rule 5 Order XLI CPU and the learned Counsel for the Appellant has not pressed fur the stay of the execution proceedings in Suit No. 1700 of 1973 under Rule 5 of Order 41 Code of Civil Procedure.

It has, however, been urged by the learned Counsel far the Appellant that the Respondents be restrained from executing the decree under Order 39 CPC In Suit No. 1700 of 1973 and thereby evicting the Appellants from premises No. 27/104, Haveli Bahadur Khan, Dhuliyaganj area.

Proviso A to Rule 2 of Order XXXIX CPC as amended by Uttar Pradesh lays down that no such injunction can be granted where no perpetual injunction could be granted in view of provisions of Section 38 and Section 41 of Specific Relief Act. It is clear that u/s 41 of Specific Relief Act no perpetual injunction could be granted to restrain the Respondents from executing the decree passed in Suit No. 1700 of 1983. So no temporary injunction can be granted under Rule 2 of Order XXXIX. The learned Counsel for the Appellant has urged that he does not claim temporary injunction in this case under Rule 2. His contention is that the Appellants are entitled for a temporary injunction under Rule 1(c) of Order XXXIX which has been added by amendment in the year 1976 and reads as below:

That the Defendant threatens to dispossess the Plaintiff or otherwise cause injury to the Plaintiff in relation to any property in dispute in the suit.

The following facts would be fruitful to appreciate the Appellants� claim for temporary injunction under Order XXXIX Rule 1(c) Code of Civil Procedure.

Sri Makhan Lal (deceased) was landlord of the building No. 27/104 situated at Dhuliyaganj Agra. Sri Har Narain Sharma was tenant of a portion of the aforesaid building. The Respondents Mahesh Chandra Gupta and Sharad Chandra Gupta the grand-sons of Makhan Lal inherited the property on the basis of a will and became landlords. They filed Suit No. 1700 of 1973 in the court of Judge Small Causes Court, Agra against the Appellants and Har Narain for eviction on the ground that the Appellants were occupying the accommodation as sub-tenants of Har Narain. The Appellants contested the suit but the suit for eviction was decreed. The Appellants along with Har Narain Sharma preferred Revision No. 101 of 1978 against the judgment and decree. The revision was dismissed by Ist Additional District Judge, Agra on 17th March 1979. Thereafter the Appellants filed Writ Petition No. 3614 of 1979 in this Court challenging the judgment of the Ist Addl. District Judge, Agra. The Writ Petition was dismissed. The Appellants then approached Hon''ble The Supreme Court for special leave. The SLP was dismissed on 22nd April 1980. It is significant to note that while dismissing the SLP the Hon''ble Supreme Court granted nine months time upto 31st January 1981 to the Appellants to vacate the premises subject to their filing an undertaking within 15 days to the effect that they would handover vacant and peaceful possession of the accommodation at the expiry of the said period. The Appellants instead of submitting an undertaking as directed by Hon''ble Supreme Court, got Suit No. 445 of 1979 instituted against the Respondents for a declaration that the decree obtained in Suit No. 1700 of 1973 was null and void. That suit was filed by the mother and sisters of the Appellants but it was dismissed in default on 17th January 1980. The Respondents filed execution petition for the execution of the decree passed in Suit No. 1700 of 1973. The Appellants filed objections in the execution. Their objections were dismissed on 23rd September 1980. They preferred appeal against the same and the appeal was treated as a Civil Revision and dismissed on 17th March 1981. The Appellants filed Suit No. 204 of 1980 for a declaration that the decree passed in Suit No. 1700 of 1973 is a nullity having been obtained by means of fraud and misrepresentation and also prayed for a permanent injunction restraining the Respondents from taking possession over the disputed accommodation on the basis of the said decree. The suit has been dismissed by both the courts below and hence this second appeal.

It is thus clear that the Respondents are not threatening the Appellants to dispossess them or otherwise cause any injury by unlawful means. The Respondents simply want to execute the decree which has been passed in their favour and want to reap fruits thereof after having succeeded from the highest court of the land. They are pursuing the remedy allowed to them by law. They have no Intention to evict the Appellants by adopting wrongful means. Rule 1(c) of Order XXXIX comprehends only the acts of a party which are wrongful and not the legitimate acts of a person who pursues the remedy allowed to him by law. In taking this view I find myself in full agreement with the observations made in Datla China Appalanarasimha Raju Vs. Nadimpalli Seethayamma Garu and Others, . The Respondents have a legal right to put the decree into execution and the exercise of that right does not in any way amount to injury as contemplated under Rule 1(c). The Appellants have no case for temporary injunction under Order XXXIX (1)(c) Civil Procedure Code. Reliance has been placed by the learned Counsel for the Appellants on Madan Mohan Vs. Revti Prasad and Another, single Judge wherein it has been held that the Civil Court has jurisdiction to issue temporary injunction in a proper case under its inherent powers u/s 151 CPC in a case where it is not possible to do so under Order XXXIX rules 1 and 2 Code of Civil Procedure. In the instant case the facts and circumstances bearing on the record as stated above do not in the least make out a case for invoking the inherent powers of the court u/s 151 CPC to grant temporary injunction restraining Respondents from reaping the fruits of a decree which has been confirmed even by the highest court of the land. More so when the Appellants failed to file undertaking and vacating the premises within 9 months as directed by Hon''ble Supreme Court.

In the result I see no substance in this application. The same is consequently rejected.