Patna High Court
Bhagelu Mian vs Mahboob Chik And Ors. on 4 January, 1978
Equivalent citations: AIR1978PAT318, 1978(26)BLJR117, AIR 1978 PATNA 318
ORDER Madan Mohan Prasad, J.
1. The petitioner has come up against an order refusing to grant ad interim injunction against the defendants from taking possession of a property in execution of a decree.
2. The petitioner having been unsuccessful in a proceeding under Order 21 Rule 97 of the Civil P. C. (hereinafter referred to as 'the Code') filed the present suit under Order 21 Rule 103 of the Code. The circumstances which gave rise to the suit are as follows. According to the petitioner the house in suit originally belonged to one Md. Hussain who granted a Rehan to one Kupan Rai in the year 1924 who in his turn had assigned his interest to Sobrati (father of the plaintiff) and his brother Teju and delivered possession to them. This was in the year 1926. In the year 1936 again Md. Hussain granted a second Rehan to Sobrati and Teju. By virtue qf these transfers Sobrati and Teju continued to be in possession. In the year 1945 they partitioned their properties and the house in dispute fell to the share of Sobrati, father of this petitioner and after him the petitioner came into and continued to be in possession. There was, however, a partition suit filed by defendant Mahboob against the aforesaid Teju and others. The dispute between the parties was referred to arbitration. As a result there was an award and a decree on its basis. Mahboob, therefore, levied execution and there was an order for delivery of possession. During the course of such delivery there was obstruction by the petitioner giving rise to the proceeding under Order 21 rule 97 which was decided adversely to the petitioner and hence the suit.
3. The defence case, on the other hand, is that the property belonged to the father of Md. Hussain, namely Sher Ali who has transferred the same as dower debt to his wife Rahiman in the year 1314 Fs and Rahim had made a gift of the said property to her grandson Sher Mohammad. The defendants thus say that the plaintiff had acquired no title by virtue of the mortgage executed by Md. Hussain.
4. During the pendency of the suit the petitioner filed an application for injunction against the defendants from taking possession of the property in execution of the decree drawn up on the basis of the arbitrator's award. The trial court found against the plaintiff on all the points -- existence of prima facie case, balance of convenience and irreparable loss. The appellate Court, however, came to different conclusions. It found that the petitioner had been in possession of the property since 1931; that he was not bound by the decree as a result of arbitration proceeding not being a party thereto and thus found that the plaintiff's interest had not been affected thereby. It, however, found that in view of Rule 1 of Order 39 of the Code as amended by this court he could not grant the prayer for injunction because the petitioner in the present case had an opportunity of making and had made a claim during the pendency of the proceeding.
5. Learned counsel for the petitioner has, therefore, urged that Order 39 Rule 1 has no application in the present case and thus it could not be set up as a bar to the grant of injunction. Secondly, he has urged that in view of the finding that the petitioner has been in possession of the house since 1931 as evidenced by the documents it is obvious that the balance of convenience lies in his favour and it would be an irreparable injury to him if he is ousted from the house at this juncture.
6. The crucial point for determination in this case is whether Rule 1 of Order 39 as amended by this Court stands in the way of grant of an order of injunction. The lower appellate court having found on all points in favour of the petitioner the only point which, as he says, debarring' him from issuing the order of injunction is Rule 1 of Order 39 as amended, which reads as follows :
"Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of any decree; or
(b) that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors the court may by an order grant 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, or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders.
Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 of the Specific Relief Act (Act 1 of 1877) :
Provided further that an injunction to restrain a sale, or confirmation of a sale or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property, or objection to the sale, or to the attachment preceding it, before the Court executing the decree."
Reading the aforesaid the court below came to the conclusion that an injunction restraining delivery of possession could not be granted in any case where the applicant can lawfully prefer or could have so preferred a claim. Learned Counsel has urged, and rightly so, that Rule 1 of Order 39 applies to a case, leaving aside the others mentioned in the rule, where property is wrongfully "sold in execution of a decree". In other words, it is urged that Rule 1 does not apply to a case where property is to change hands without there being a sale in execution. It is obvious from a reading of the Rule itself that Sub-rule (1) (a) is to apply so far as its last part is concerned to a case where a property is in danger of being wrongfully sold in execution of a decree. In this connection I would like to mention that question had arisen in the past whether where a sale in execution of a decree has already taken place an order of restraint against the delivery of possession following such a sale could be issued? On this point there was conflict of opinion between different High Courts, Lahore High Court holding on the one hand that it could be done whereas Ra-jasthan, Andhra Pradesh and Kerala High Courts holding to the contrary. (See AIR 1930 Lah 850, AIR 1959 Ker 45. ILR (1959) 9 Raj 1064 and AIR 1959 Andh Pra 310) (FB). The amendment having been made by this Court to the said rule by adding the two provisos aforesaid, the position is clear that injunction in restraint of delivery of possession may be made. The question still remains whether delivery of possession in cases other than those of sale in execution of a decree can be restrained under Rule 1 of Order 39. In the instant case undisputedly there has been no sale in any execution. The suit which gave rise to the decree was a suit for partition and the dispute between the parties was settled by an award of the arbitrator and on its basis the decree was passed. In such a decree there is no question of sale in execution. It is only a question of delivery of possession according to the shares and the allotments made to the parties. Obviously in the instant case the claim for injunction is not based on the ground that the property is in danger of being wasted or damaged or alienated or wrongfully sold in execution of a decree. It is not a case either attracting Clause (b) of Rule 1. Obviously, therefore, the instant case does not fall within the four corners of Rule 1 of Order 39 of the Code.
7. Coming now to the amendment made by this Court I have underlined the word 'the' which has been substituted for the word 'a' in Clause (a). Material amendment has been made by addition of two provisos to the Rule. It is well known that a proviso has generally the purpose of modifying the general principles enunciated in a general rule. Here Rule 1 enables a court to grant injunction in the cases mentioned therein. The first proviso takes away from that right by laying down that no such injunction shall be granted if it contravenes Section 56 of the Specific Relief Act. The second proviso has again the same effect of taking away from the main provisions by laying down an injunction of the nature mentioned in this proviso including a restrain on delivery of possession shall not be granted in such cases. The proviso has however, to be read along with the main rule. The Rule itself speaks of sale in execution of a decree. The proviso must, therefore, be read in that context. The restraint on delivery of possession provided for in the second proviso must be so read as to be harmonious to the parent Rule and must necessarily relate to the delivery of possession in respect to a property sold in execution of a decree. The counsel for the petitioner has said that he has not been able to find out any decision of this Court on this point and it is one of first impression. Be that as it may. I have no difficulty in interpreting the amendment made by this Court to Rule 1 of Order 39 of the Code. It is obvious from the wordings of the proviso itself. It is said that no injunction would be granted in such cases where a person could lawfully prefer a claim to. the property or objection to the sale or to attachment preceding it before the court executing the decree. Emphasis should be laid on the words "the Court executing the decree." The claim obviously can be made before such Court. That may be under Order 21 Rule 58 or it may be in a proceeding under Order 21 Rule 97 of the Code. The entire proviso thus appears to be intended to cover cases arising in the course of execution proceeding and relating to sale, confirmation of sale or delivery of possession as a result of jsuch sale. The instant case is thus not I covered by the provisions of Rule 1 of Order 39 and the proviso is not attracted at all. The court below therefore, erred in refusing to grant injunction on the basis of the said proviso.
8. It is now well settled that an order for injunction can be passed under the inherent powers of this Court recognised by Section 151 of the Code. The earlier controversy on the point has been set at rest by the Supreme Court in the case of Manohar Lal v. Seth Hiralal, (AIR 1962 SC 527). In this case the learned Judges held (at p. 528) that:
"there being no provision expressly prohibiting the issue of temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39 of the Code, if the Court is of opinion that interests of justice require the issue of such ad interim Injunction."
In this view of the matter if the circumstances of the present case justify, there is no impediment in the way of granting the order prayed for.
9. Turning to the circumstances of the present case it is obvious that even though the title of the plaintiff has been assailed by the defendants on the ground that the original mortgagor Md. Hussain had no right in the property transferred the fact remains that the plaintiff has been found to be in possession of the property. It will be relevant to state that the first mortgage was made in the year 1924, which was never challenged at any earlier stage. The second mortgage was made in the year 1936. True both these mortgages were by Md. Hussain. But he was not a person other than the son of Mossomat Rahiman and Sher All It has also been found by the court below that the suit where the defendants had partitioned the property did not affect the interest of the plaintiff. Further it has been held that the plaintiff appears to have come into possession on account of the mortgage in 1926 and there are docu-ments from the year 1931 (sic) to show that he continued in such possession. I am not referring to these facts in order to show that the plaintiff has a prima facie case because the appellate court has found it to be so but I am referring to them in order to show that this petitioner has been found to be in possession of the property from the year 1945. It has been also found that he was in possession as a result of which the proceeding under Order 21 Rule 97 of the Code had arisen. The plaintiff has made out even a case of adverse possession. It is urged that the right to redeem the two mortgages had come to an end and assjuming that he had not derived any title from Moham-mad Hussain yet being in possession for the statutory period to the knowledge of the real owners he had perfected his title by adverse possession. Be that as it may, the question of plaintiff's title has yet to be determined finally in this suit. I have no doubt that interest of justice does require that he should not be allowed to be ousted until the right to the property is finally decided. It has been urged that he has no other house to live in. The trial court while considering the question of balance of convenience does not appear to have considered this statement of fact. That apart there is no denial that the plaintiff is in actual possession. In that view of the matter if the plaintiff is to be thrown on the street it would be in my view an irreparable injury. This is a fit case where interest of justice dictates the grant of an order of interim injunction.
10. For the reasons mentioned above I would set aside the order passed by the courts below and restrain opposite party No. 1 from taking delivery of possession of the house in dispute during the pendency thereof. The trial court will expedite the hearing of the suit.
11. In the result this application Is allowed. There being, however, no appearance of the opposite party, there will be no order as to costs,