Sukumaran vs Radha and Others

G.H. Guttal, J.—The District Judge, Kozhikode allowed the C.M.A No. 111/90, against the order of the Munsiff, Kozhikode-II, whereby the latter had dismissed I.A. No. 6135/90, for injunction made by the Plaintiff. The result is that while the Munsiff dismissed the application for interim injunction, the District Judge, in appeal, granted it. The Defendants impugn the validity of the order of the learned District Judge Kozhikode in C.M.A. No. 111/90.

In suit No. 207/84, the Defendants secured a decree for partition. The decree was made by the Subordinate Judge, Kozhikode. The Plaintiff was not a party to O.S. No. 207/84, filed by the Defendants. She therefore made I.A. No. 916/84, for joining herself as a Defendant. This application was dismissed by the Munsiff. She filed C.R.P. No. 1887/1985. But before C.R.P. No. 1887/85 could be disposed off, O.S. No. 207/84 was decreed.

Therefore, she filed the present suit No. 840/90, in the Court of the Munsiff, Kozhikode. She seeks a decree for partition and perpetual injunction restraining the Defendants from executing the decree in O.S. No. 207/84. As already stated, she I.A. No. 6135/90, for interim injunction restraining the Defendants from prosecuting the execution proceedings, in the Court of the Subordinate Judge, Kozhikode to execute the decree in O.S. No. 207/84. The I.A. No. 6135/90 was dismissed by the Munsiff, the C.M.A. No. 111/90 against which was allowed by the District Judge.

The facts which should be noted are these: The decree in O.S. No. 207/84, which is now being executed was passed by the Subordinate Judge, Kozhikode. The injunction to prevent the execution of this decree in the Court of the Subordinate Judge was refused by the Munsiff in whose Court O.S. No. 840/90 was filed. But the injunction was granted in appeal by the District Judge. The Munsiff who is trying O.S. No. 840/90 is subordinate to the Subordinate Judge, Kozhikode. The execution of the decree in S.O. No. 207/84 is being prosecuted in the Court of the Subordinate Judge, Kozhikode. This execution is sought to be prevented by the injunction prayed for in the said suit.

The submission made by counsel for the Petitioner is that Section 41(b) of the Specific Relief Act precludes a Court from granting an injunction to restrain institution or prosecution of judicial proceedings in a Court not subordinate to it. The District Judge, who was hearing C.M.A. No. 111/90 against the order of the Munsiff, was actually hearing a continuation of the application for injunction instituted before the Munsiff. Consequently, the grant of injunction by the District Judge, Kozhikode is a grant of injunction by the Munsiff himself, which is forbidden by law.

In answer to this, learned Counsel for the Plaintiff urged that the order of the Munsiff refusing to grant injunction merged with the order of the District Judge whereby the injunction was granted. The order of the Munsiff does not exist. There is only one order, that is, the order of the District Judge. Since the District Judge who granted the injunction is superior to the Subordinate Judge the proceedings in whose Court are sought to be prevented by the injunction, Section 41(b) of the Specific Relief Act does not come into play.

Section 41 of the Specific Relief Act lists cases in which a prepetual injunction cannot be granted. One of the injunction that cannot be granted is an injunction to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. The jurisdiction to grant injunction is discretionary.

It is well settled that the judgment or decree of the appellate Court replaces the judgment of the trial Court, thus constituting the judgment or decree of the appellate Court the only final judgment to be executed in accordance with law by the Court below U.J.S. Chopra Vs. State of Bombay, Kannan v. Narayani 1980 KLT 9. The merger takes effect irrespective of whether the appellate order is one of reversal, confirmation of modification Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., . Even where the final order is made in exercise of Revisional jurisdiction, the subordinate orders merge with the order made in Revisional jurisdiction. The reason is that the Revisional Jurisdiction is basically and fundamentally the appellate jurisdiction Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, There is no doubt that the order of the Munsiff refusing to grant injunction merged with the order of the District Judge who granted the injunction.

Suppose, a Munsiff grants injunction restraining decree holder from executing the decree in the Court of the Subordinate Judge or the District Judge. The injunction is contrary to the command of Clause (b) of Section 41. What is the nature and effect of such an order? This question has been settled by the Supreme Court in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, The Supreme Court held:

Section 41(b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought.

Now the Munsiff had no jurisdiction to grant'' the injunction because the injunction seeks to restrain the Defendants form executing a decree in a Court superior to the Munsiff. But according to counsel for the Respondents the District Judge who granted the injunction in appeal is not subordinate to the Sub Judge in whose Court execution is being prosecuted. By reason of the merger of the Munsiff''s order with that of the District Judge, the injunction now in force is the injunction by the District Judge. The District Judge is superior to the Sub Judge. Therefore, it is urged, that the injunction is not contrary to Clause (b) of Section 41 of the Specific Relief Act.

The question then is whether the District Judge exercising appellate jurisdiction, over the Munsiff''s order, which is without jurisdiction, is subject to the same jurisdictional constraints as the Munsiff is, by reason of Section 41(b) of the Specific Relief Act. The answer to this question depends upon the scope and extent of appellate powers.

The powers of the Courts hearing appeals from orders have been set out in Sub-section (1) of Section 107 of the Code of Civil Procedure. Clause (2) of Section 107 of the CPC lays down:

...the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code, on Courts of original jurisdiction in respect of suits instituted therein.

Section 41(b) applies to perpetual as also temporary injunctions Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. and Ors. AIR 1983 S.C. 127. The Court of original jurisdiction, which in this case is the Munsiff''s Court, has no jurisdiction to grant interim injunction to restrain the Defendants from executing the decree in the Court of Sub Judge. The appellate Court''s powers are the same as those of the Munsiff. The appeal from an order refusing to grant injunction is but a continuation of the application for injunction made before the Munsiff. The appellate Court is presided over by the District Judge. But his power does not transcend the powers of the Munsiff, the proceedings before whom are continued in appeal. The powers of the appellate Court are co-extensive and co-terminous with those of the trial Court. The Court exercising the appellate powers may, in the judicial hierarchy, be superior to the Court which refused to grant the injunction. But what it hears and decides in appeal, is a continuation of the pro-ceedings in which the order appealed from was made. ''Therefore, the appellate Court is an extension of the trial Court with the power to judge the correctness of the order appealed from. By its very constitution as art extended trial Court, it is subject to the same limitations which circumscribe the jurisdiction of the trial Court. Since the Munsiff has no jurisdiction to restrain the Defendants, from instituting or prosecuting, proceedings for execution before the Subordinate Court, the District Court in appeal, too has no jurisdiction so to restrain the Defendants.

An analysis of Sub-section (2) of Section 107 also supports my view expressed in the last paragraph. The Appellate Court''s power is defined by the clause "the appellate Court shall have the same powers...as are conferred on the Courts of original jurisdiction". There is the further qualifying clause "in respect of suits instituted therein". The "same powers" and not larger or superior powers have been conferred. Again, the powers which, appellate Courts, possess are circumscribed by the words "in respect of suits" instituted in the trial Court. These, words, imply that the appellate Courts have only those powers which the trial Courts exercise in respect of suits. By implication it means that if the trial Courts do not possess a particular power "in respect of suits instituted therein", the appellate Courts too do not possess such power. Thus the trial Court''s power in respect of suitsfor injunction is curtailed and limited by Section 41(b) of the Specific Relief Act. Therefore, Appellate Court''s power in respect of grant of injunction is the same as that" of the trial Court. There is no doubt that if the trial Court has no jurisdiction to grant the injunction referred to in Section 41(b) of the Specific Relief Act, the Appellate Court too does not possess the jurisdiction to grant such injunction.

For all these reasons, the petition is allowed. The order of the District Court in C.M.A. No. 111/90 is set aside and the order of the Munsiff, Kozhikode in I.A. No. 6135/90 is restored. No order as to costs. Hearing of the suit is expedited.