Shyam Behari Singh vs B. Biseswar Dayal Singh and Others

In view of the order passed on the 10th January, 1924, of this Court (No. 10), the appeal from the order of the Subordinate Judge, dated the 14th September, 1923, refusing to grant an injunction pending the disposal of the application filed by the appellant for an ad interim injunction till the disposal of the suit No. 2 of 1923 instituted by him and the application made in this Court for an ad interim injunction till the disposal of the appeal, have now been heard together. All the parties have been served with notice. Mr. Lakshmi Narayan Singh appears for defendant No. 7 who is under the Court of Wards, and Mr. Samhhu Saran for defendants 2 to 6 and 15 to 17 who are minors under the guardianship of defendant No. 3. Mr. Raghunandan Prasad appears for defendant No. 1. Dafendats Nos. 9, 10, 11, 12 and 13, although served with notices, have not entered appearance.

A preliminary objection was raised as to the competency of the appeal, The ground urged is that no final order has been passed by the Court below disposing of the application made by the appellant in that Court for an act interim injunction pending the disposal of the suit, and that the order appealed against is only an order refusing to grant an injunction pending the disposal of his main application, and that therefoi e no appeal lies from such an order. Reliance has been placed upon Order 43, Rule 1(r). Under this provision, an appeal lies from "an order under Rule 1, Rule 2, Rule 4 or Rule 10 of Order 39." This is undisputed; but it is said that the order of the 14th September, 1923, passed by the Court below in the present case is not an crier under any of the aforesaid Rules of Order 39 mentioned above. This contention does not seem to be sound. It is now settled that an appeal lies from an order granting an injunction as well as from an order refusing an injunction, vide Hari Lal v. Prayag Ram (1913) Cir.L.J. 39 and Lachmi Narain v. Ram Charan Das (1913) 35 All. 425. This is, however, not the point in the present case. The point is whether an order refusing an application for a temporary injunction until the disposal of the main application for injunction pending the disposal of the suit is an order under Order 39, Rule 1 of the Civil Procedure Code. That Rule says that upon the conditions mentioned in Clauses (a) and (b) "the Court may by order grant "a temporary injunction to restrain such "act, or make such other order for the "purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as "the Court thinks fit, until the disposal of "the suit or until further orders." There is, therefore, ample provision for orders " until the disposal of the suit" as well as for orders "until further orders." Hence the order granting or refusing a temporary injunction pending the disposal of the main application will also come under this provision. It would seem that but for this provision mischief may be done to the properties in the interval between the order refusing a temporary injunction pending the disposal of the main application and the final order granting the injunction, and thus the object of the final order passed in the main application might be wholly frustrated, The Code therefore provides in Order 43, Rule 1(r) for an appeal from all orders interlocutory and final passed under Order 39, Rule 1 granting or refusing an injunction. Therefore the order in the present case, dated the 14th September, 1923 in our opinion, comes well within Rule 1 of Order 39 of the Code and is appeable under Order 43, Rule 1(r). The contention of Mr. Lakshmi Narain Singh is overruled.

Now the question is whether in the circumstances of the case the order of the Subordinate Judge, dated the 14th September, 1923, is justifiable or not; in other words, whether a temporary injunction should issue in the present case.

The learned Subordinate Judge called upon the defendants to show cause why the plaintiff''s application for injunction pending the disposal of the suit should not be granted. It was, therefore, desirable that an injunction restraining the defendants from diposing of the properties pending the disposal of the application should have been granted by the Subordinate Judge.

We allow the appeal and direct that an injunction do issue upon the defendants as-aforesaid and that the application before the learned Subordinate Judge be disposed of as quickly as possible. This disposes of" the application also.