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Judgment
K.V. Gopalakrishnan Nair, J.—This is an application for revising the order passed by the Addl. District Judge at Jammu granting an ad
interim injunction against the petitioner restraining him from executing an ejectment decree obtained by him against the second Respondent, pending
a redemption suit instituted subsequently by the Respondents in the court of the Sub-judge at Jammu.
The mother of the second Respondent who owned a house in the Jammu city mortgaged it with possession to the petitioner in Samvat year
1993 to secure a loan of Rs. 2000/-. While the mortgagor was alive and the second Respondent had no manner of right or interest in the
mortgaged property, the petitioner leased out the house to the second Respondent. The tenant kept rent in arrear which led the petitioner to file a
suit in ejectment against him. A decree was duly obtained by the petitioner. The second Respondent preferred an appeal against the decree but it
was unsuccessful. Meanwhile, the mortgagor died and the first Respondent, her husband, and the second Respondent, her son, became entitled to
the mortgage property as her legal heirs.
These two Respondents sold a moiety of the house to the third Respondent. The second Respondent also appears to have put the third
Respondent in possession of half of the house. The petitioner, decree-holder, put the ejectment decree into execution but he was confronted with a
suit for redemption of the mortgage by the Respondents who also applied for an interim injunction to restrain him from executing the ejectment
decree against the second Respondent. The court of first instance rejected the application. On appeal the Addl. District Judge granted the
injunction. The petitioner decree-holder has now come up in revision to this Court, challenging the correctness and validity of the order made by
the Addl. District Judge.
Rules 1 and 2 of Order 39 of the CPC deal with the circumstances under which a temporary injunction can be granted. The Respondents, in an
attempt to support the order of the Addl. District Judge, have invited my attention to clause (a) of Rule 1 and also to Sub-rule (1) of Rule 2. It is
argued that if the petitioner is allowed to execute the ejectment decree, the property which forms the subject-matter of the redemption suit will be
wrongfully taken in execution. However, Rule 1(a) of Order 39 of the CPC speaks of the property being wrongfully sold in execution. This apart,
it is extremely difficult to say that there is anything wrongful in a decree-holder seeking to realize the fruits of his decree by launching execution
proceedings. The decree for ejectment is a valid and binding decree. No infirmity has been alleged to attach to it. It is, therefore, quite idle to
contend that execution of such a decree is wrongful.
Then it is urged that the case falls under Rule 2(1) of Order 39 in that by executing the ejectment decree the petitioner will be causing injury to
the property which forms the subject-matter of the redemption suit. Here again, the Respondents have to be met with the same argument as under
Rule 1(a). The exercise of a valid legal right obtained under a decree of court cannot be held to constitute commission of injury of any kind within
the meaning of Rule 2(1) of Order 39.
A legal proceeding taken in execution of a valid decree is certainly not the kind of legal injury contemplated by Rule 2(1). Furthermore, Rule 2 can
be invoked only in a suit for an injunction. A suit for redemption of a mortgage can by no stretch of reasoning be construed as a suit for an
injunction to restrain the defendant. It is, therefore, clear that Rule 2(1) of Order 39 cannot avail the Respondents. The true position is that the
Respondents who are plaintiffs in the redemption suit are not entitled to a temporary Injunction under the provisions of Order 39.
It is then urged that Section 94 of the CPC empowered the lower court to grant a temporary injunction. No doubt, Clause (c) of Section 94
speaks about the grant of a temporary injunction, but the power to grant such an injunction is controlled by the opening part of the Section which
runs:
In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed
The importance of the words 'if it is so prescribed' cannot be (sic). Section 2(16) of the Code defines the word 'prescribed' as meaning 'prescribed
by rules;' and 'rules' have been defined as ""rules and forms contained in the First Schedule or made u/s 122."" Thus, so far as the granting of a
temporary injunction is concerned, Section 94 inescapably refers to Rr. 1 and 2 of Order 39. In the absence of the power to grant a temporary
injunction being prescribed by rules, that power cannot be exercised u/s 94 simpliciter. And when rules provide for the grant of a temporary
injunction, it can be granted only in conformity with those rules. The very purpose of prescribing rules for granting a temporary injunction is to
define and delimit the power to grant a temporary injunction.
Whenever the Code expressly provides for a particular case or class of cases by rules, the rules must ordinarily be taken to be exhaustive in
respect of the particular case or class of cases. Court cannot add to or take away from those rules but have to function within their framework. If
the rules empowering a court to grant temporary injunctions do not cover a case like the present, the proper inference is that it was not intended
that a temporary injunction should issue in a case like the present. I do not think it is legitimate to overlook this position and seek to invoice the
inherent powers u/s 151 of the CPC to grant a temporary injunction. It was observed by Varadachariar J. in Murugesa Mudali Vs. Angamuthu
Mudali, :
Whatever may be said as to the power of the High Court to issue injunction for other purposes and to punish disobedience thereof in exercise of its
own inherent power as a Court of Record, the power of subordinate courts must be found within the four corners of the Code and it seems to me
too much to suggest that, when the Code has expressly dealt with the injunctions in Order 39, Sec, 151 can be invoked to add to the powers thus
conferred.
This view has been followed by a Division Bench of the Andhra High Court (Subba Rao C.J. and Bhimsankaram J.) in Peddinti Gopalacharyulu
Vs. Rudraveeranna and Others, . The same view has been expressed by Dixit J. in Ram Swarup v. Ram Prasad AIR 1953 MP 154. In Abdul
Hamid Khan and Others Vs. Tridip Kumar Chanda and Another, also a similar view has been taken.
Whatever be the inherent powers of a High Court apart from the provisions of Order 39 to grant a temporary injunction in appropriate cases,
those powers cannot be exercised when dealing with an appeal or revision from an order made by a subordinate court. There, the question will be
whether the subordinate court had the power and jurisdiction to grant the temporary injunction or not. If the subordinate court did not have such
power and jurisdiction, the High Court in appeal or revision will have to set aside the order of that court.
In other words, the question for consideration will not be whether the High Court had the inherent powers as a Court of Record, but whether the
subordinate court which passed the particular order complained of acted within its powers. It is, therefore, no use urging that even if the Addl.
District Judge had no power to grant a temporary injunction in the instant case, the High Court can well grant it. I am aware that certain decisions,
notably of the Calcutta High Court, have taken the view that even subordinate civil courts can in exercise of their inherent powers u/s 151 grant a
temporary injunction, although Order 39 does not confer such a power on them.
These decisions do not represent the view of the majority of the High Courts in India; they have been rendered in the peculiar circumstances of the
particular cases and do not appear to have given adequate consideration to the effect of the words of Section 94. I do not consider it necessary to
labour this aspect further, because even assuming that the provisions of Section 151 can properly be invoked in an appropriate case, the facts and
circumstances of the present case are not such as to justify recourse to Section 151.
It appears to me that one of the objects of redemption action launched by the Respondents was to make it difficult, if not impossible, for the
decree-holder petitione to execute the ejectment decree in his favour. A mortgagee with possession cannot be compelled to keep away from the
possession of the property merely because a suit for redemption of the mortgage is filed. The decree for ejectment against the possessory
mortgagee's tenant must be given some weight and value and cannot be reduced to a dead letter especially when the lease by the possessory
mortgagee was an admittedly independent transacting totally unconnected with the transaction of mortgage and was to a person who was not the
mortgagor himself.
In view of the foregoing the revision is allowed and the order of the Add. District Judge granting a temporary injunction is set aside. Petitioner
will get costs in this revision from the Respondents.