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Judgment
Jagat Narayan, J.C.
This is a defendant''s revision application against an appellate order of Shri Durga Prasad, District Judge, Rewa, granting a temporary injunction under O. 39 R. 1(a), C. P. C. I have heard the Learned Counsel for the parties.
Tulsi defendant brought a suit for possession in respect of a chabutra situated in Abadi plot No. 2992 against Salig Ram plaintiff. It was held in that suit that plot No. 2992 was the property of the State but that Tulsi had a right to get possession over it against Salig Ram on the ground of his prior peaceful possession, it was found that Tulsi had not perfected his title to the Chabutra by adverse possession.
Subsequent to the passing of the decree plot No. 2992 was sold by the State to Salig Ram. Tulsi however applied for execution of his decree and the executing court issued notice to Salig Ram asking him to demolish his building standing on the chabutra by 3-5-55, failing which it was directed that the building would be demolished under the order of the court and possession delivered to Tulsi over the chabutra. Salig Ram then Instituted a suit against Tulsi for a declaration that the decree of possession had become ineffective against him and for permanent injunction restraining Tulsi, from executing the decree.
He sought a temporary injunction under O. 39, which was granted ex parte but was later on set aside by the trial court on the application of the defendant. Tulsi went up in appeal to the learned District Judge who granted him an injunction holding that the case fell within the provisions of O. 99 R. 1(a).
On behalf of the applicant it has been argued that the, order passed by the learned District Judge is without jurisdiction. Reliance is placed on the following rulings:
''Ram Narain v. Sri Krishna'', 1956 Madh B 75 (AIR V 43) (A).
''Mt. Ladi v. Keol Raj'', 1955 Assam 174 ((S) AIR V 42)(B).
Abdul, Hamid v. Pridip Kumar'', 1953 Assam 104 (AIR V 40) (C).
In the Madhya Bharat case (A)'', it was observed relying on earlier decision of that Court that no order of injunction can be made under O. 39, R. 1 or R. 2 or under S. 151 to restrain a decree-holder from executing a decree in his favour so long as the decree stands. No reasoning is given in the judgment in support of this observation and the report of the earlier case is not available here.
The observation prima facie appears to be much too wide as R. 1 of O. 39 specifically provides that where in any suit any property in dispute is in danger of being wrongfully sold in execution of a decree the Court may grant a temporary injunction restraining the sale. On facts it was found in the Madhya Bharat case (A) that the plaintiff had no prima facie case.
In '' 1955 Assam 174 ((S) AIR V 42) (B)'', reliance was placed on 1953 Assam 140 (AIR V 40) (C). In the latter case it was held:
The decision of the question obviously turns on the interpretation of the word ''injury'' occurring in R. 2 of O. 39. It is a question whether taking execution of a subsisting decree which is the subject-matter of a litigation or which is being challenged by the plaintiff in a case amounts to an injury of the kind contemplated by R. 2, O. 39. An infringement of a copyright or of a trade mark or an obstruction to a right of property or threatened acts of waste would be admittedly injuries which may be prevented by the grant of a temporary injunction.
But, it seems to me that a person may not be prevented from executing a decree obtained by him on the ground that it causes injury to the plaintiff. The execution of a decree is in the exercise of a legal right and it cannot be placed on a par with the breach of a contract or injury to property or the disturbance of other rights vesting in a particular individual.
A contrary view was taken in - ''Umapati v. Subodh Chandra'', 1953 Cal 377 (para 5) (AIR V 40) (D). Both the Assam cases fell under R. 2 of O. 39. Decrees of ejectment had been passed against the plaintiffs the execution of which wad sought to be restrained by temporary injunction. The present case however falls, under R. 1(a) of O. 39. The building of the plaintiff standing on the chabutra over which the defendant seeks possession in execution is in danger of being demolished at the instance of the defendant.
This building is also the subject-matter of the suit along with the chabutra. The plaintiff has a prima facie case and irreparable loss would be caused to him by the demolition of the building standing on the chabutra, if the temporary injunction was not granted. The comparative inconvenience caused to the defendant is not equally great.
Under the circumstances the order passed by the learned District Judge is one within jurisdiction and is a proper order. On behalf of the appellant the Learned Counsel offered to undertake not to demolish the building till the final decision of the suit and prayed that possession may be delivered to him subject to this undertaking. No such undertaking was given in the lower court and the only question for decision here is whether the order passed by the learned District Judge was one within jurisdiction. I accordingly dismiss the application. In the circumstances of the case I direct that parties shall bear their own costs.