Spectrum Enterprises and Others vs Bank of India and Others

R.D. Shukla, J.—This appeal is directed against the judgment and order dated October 8, 1991, of the 10th Additional District Judge, Indore, passed in Civil Suit No. 123-B/88, whereby an injunction restraining the defendant-appellants from disposing of the house No. 127 (old No. 100), Vallabh Nagar, Indore, has been passed.

The brief history of the case is that plaintiff-respondent No. 1 filed a suit against the defendants-appellants and respondents Nos. 2 and 3 with the assertions that Chimanbhai Patel, the predecessor-in-interest of the appellants and respondents Nos. 2 and 3, has obtained a loan of Rs. 30,000 for running Spectrum Enterprises, 85, Siyaganj, Indore, and some movable property inside the shop was also kept under simple mortgage for security of the loan. Chimanbhai Patel did not pay back the amount and has expired.

The plaintiff-respondent No. 1, which is a body corporate and a nationalised bank, filed a suit for the recovery of Rs. 45,099.32.

During the pendency of the suit an application under Order 38, Rule 5 of the Civil Procedure Code, 1908, was filed for attachment of the house referred to above and an ex parte order of attachment was passed on the application.

The defendants-appellants contested that application with the assertions that the house was not under mortgage and it is neither being wasted nor transferred. The learned judge rejected this application of the plaintiff, vide order referred to above on the ground that no affidavit showing the ownership of Spectrum Enterprises was filed.

The plaintiff had filed another application under Order 39, Rules 1 and 2 read with Section 151 of the Civil Procedure Code, 1908, with the assertions that the defendants who are the heirs of Chimanbhai Patel who has taken the loan as the proprietor of Spectrum Enterprises are about to sell the house referred to above and if the same is disposed of it will be impossible to recover the decretal amount as no other tangible property is shown to be in the possession of heirs of the borrower.

The defendants-appellants and respondents Nos. 2 and 3 contested the petition on the ground that the application is not covered under Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908, and that they are not disposing of the property.

The learned trial judge has accepted the plaintiff''s application and issued the injunction as referred to above. Hence this appeal.

Learned counsel for the appellants in the memo of appeal and during the course of arguments has submitted that the case is not covered under Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908, and therefore the order of injunction could not be passed in exercise of powers u/s 151 of the Civil Procedure Code, 1908, as inherent powers are rarely to be exercised and should not be exercised under the provisions of law. It has further been submitted that Chimanbhai Patel was not the only owner of the house, there were other owners and for that reason also the defendants cannot be restrained from transferring the house.

As against this learned counsel for the respondents has submitted that the court has wide powers u/s 151 of the Civil Procedure Code, 1908, to pass orders of injunction. It has also been submitted that since the original borrower is dead and the defendants being the heirs as widow, daughters and sons could be proceeded against for the decretal amount only to the extent of property inherited by them. No other tangible property is being disclosed to have been inherited by them.

The learned trial judge while passing the order has relied on a case reported in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, Learned counsel for the appellants has tried to support his argument by referring to the observations in para 43 of the judgment but that was the minority view expressed by Hon. Justice J.C. Shah, as he then was. The majority view is reflected in paragraphs 18, 24 and 25 of the same judgment. The relevant portion of the same runs as follows (at page 532) :

"We are of opinion that the latter view is correct and that the courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 of the Civil Procedure Code, 1908. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any Rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently providing the procedure for them. The effect of the expression ''if it is so prescribed'' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the court''s exercising that jurisdiction and the court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the court to exercise its inherent power."

There is nothing in Order 39, Rules I and 2 of the Civil Procedure Code, 1908, which prohibits grant of temporary injunctions in cases not covered by the provisions therein.

Similarly there is no expression in Section 94 of the Civil Procedure Code, 1908, which expressly prohibits the issue of temporary injunctions in circumstances not covered by Order 39 or by any rules made under the Code. Thus, the courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 of the Civil Procedure Code, 1908, if the court is of opinion that the interests of justice require the issue of ad interim injunction.

Learned counsel for the appellants thereafter has referred to a case reported in Anilkumar Komalchand v. Kashinath Balkrishna Patel [1982] MPLJ 460, and submitted that the court could not have granted an injunction in the case. The following observations in the last portion of paragraph 7 of the judgment referred to is relevant for this case :

"The power to issue temporary injunction is conferred on the courts by Section 94 read with Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908. The courts have also inherent power to issue temporary injunction on an appropriate case being made out."

In view of the above, this case also does not help counsel for the appellants.

Now it has to be seen as to whether the facts of the case necessitated the grant of injunction or whether the inherent jurisdiction has been exercised improperly and illegally.

The plaintiffs have filed the promissory note signed by Chimanbhai Patel. The plaintiffs are a nationalised bank. It is public money which they are dealing with. It appears that nothing has been paid out of the loan amount and that that is why the suit for recovery of the amount granted as loan plus interest thereon has been filed.

It is not disputed that the appellants and respondents Nos. 1 and 2 are the legal heirs of Chimanbhai Patel who is dead. Regarding the ownership of Chimanbhai Patel (the borrower who is dead) the defendants have pleaded that he was not the sole owner but the joint ownership of any other brother of Chimanbhai has neither been pleaded nor proved by affidavit. Only the defendants are in possession of the house. The loan taken by Chimanbhai Patel can be recovered only from the property owned by him and inherited by the defendants. If the house referred to above is disposed of, the plaintiff would not be in a position to recover the money from the defendants as no other extreme action can be taken against them nor can their personal property, not related to the ownership of Chimanbhai Patel, be attached in execution of the decree.

In the opinion of this court, therefore, the discretion of the court in exercise of inherent powers for granting a temporary injunction has rightly been exercised. There is neither any illegality nor impropriety in the impugned order.

The appeal as such fails and is hereby dismissed with costs. Counsel fee Rs. 300 if certified.