Patna High Court
Indu Sekhar Agarwal And Ors. vs Phulo Devi And Ors. on 1 February, 1968
Equivalent citations: 1968(16)BLJR268
JUDGMENT Raj Kishore Prasad, J.
1. This miscellaneous first appeal purports to be undo Order 43, Rule 1(r), of the Code of Civil Procedure by the defendant first-party against Order No. 23 dated 29-1-1966 of the court below restraining the defend-ants-appellants from proceeding with the Title Execution case No. 107 of 1964 pending in the court of the Subordinate Judge, Muzaffarpur, and making the interim order absolute.
2. The sole point canvassed in this Court by Mr. Jugal Kishore Prasad, appearing for the appellants, was that the Subordinate Judge, Begusarai, had no jurisdiction to stay the Executing Case No. 107 of 1964, pending before the Subordinate Judge, Muzaffarpur, as that court was not subordinate to this Court.
3. In order to decide this question, it is necessary to state briefly the material facts of the case. What happened was this:-
Title Suit No. 21 of 1964 was instituted in the court of the Subordinate Judge, Muzaffarpur, to set aside certain alienations made by the plaintiff-respondent' mother. On 4-7-1964, the suit of the plaintiff-respondent was decreed. The defendants-first-party, who were plaintiffs in Title suit No. 21 of 1964, thereafter, put the decree in execution in Execution case 107 of 1964 in the court of the Subordinate Judge at Muzaffarpur and prayed, therein, for delivery of possession. The respondent, thereafter, who was defendant in Title suit 21 of 1964, in which, an ex-parte decree was passed in favour of the defendants-first-party-appellants, instituted a Title suit 16 of 1965 to set aside the aforesaid exparte decree in the court of the Subordinate Judge, Begusarai, and, also applied for stay of the execution case pending before the Subordinate Judge at Muzaffarpur. In Title suit 16 of 1965, the respondent made an application on 23-6-1965, purporting to be under Section s 94, 151 and Order 39, Rule 1 of the Code of Civil Procedure praying that the defendants-first party who were decree-holders-plaintiffs in Title Suit 21 of 1964 should be restrained from proceeding with the Execution case 107 of 1964 in the court of the Subordinate Judge, Muzaffarpur, arising out of Title Suit 21 of 1964 till the final disposal of her suit as she has prayed for permanent injunction restraining the plaintiffs of Title Suit 21 of 1964 from executing the aforesaid decree. This petition was considered by the learned Subordinate Judge, Begusarai, on 29-1-1966 with the result stated before.
4. In support of the appeal, Mr. Jugal Kishore Prasad relied on Section 41, Clause (b) of the New Specific Relief Act, 1963 (Act No. 47 of 1963), and submitted that the injunction granted by the court below could not be granted under this Section. He also referred to Section 56, Clause (b) of the Old Specific Relief Act, 1877, (Act No. 1 of 1877) to show the difference between the Old and the New Act.
5. The above contention of Mr. Prasad was controverted by Mr. Bindeshwari Choudhary, who appeared for the respondents, by countering that as Title suit 16 of 1965 for setting aside the ex-parte decree passed in Title suit No. 21 of 1964, had been instituted in the court of the Subordinate Judge, Begusarai, therefore) it had jurisdiction to giant the temporary injunction prayed for. He further submitted that the fact that the execution case was not transferred and was not pending before the Subordinate Judge, Begusarai, was not a ground for not issuing temporary injunction restraining the defendants from proceeding with the execution case before the court of the Subordinate Judge, Muzaffarpur, till the disposal of the suit at Begusarai.
6. Section 41(b) of the New Specific Relief Act, 1963, is in these terms:
41. An injunction cannot be granted-
(a)...
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.
Section 56(b) of the Old Specific Relief Act, 1877, is as below:
56. Injunction when refused-An injunction cannot be granted.
(a) ...
(b) to stay proceedings in. a court not subordinate to that from which the injunction in sought.
Relying on the above Section s, it was contended by Mr. Prasad that previously under Section 56(b) of the Old Act, an injunction could not be granted to stay proceedings in a court not subordinate to the Court from which the injunction is sought. In Section 41(b) of the New Act, 1963, it is provided that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought. The words "court not subordinate to that from which the injunction is sought" are common in both Sections 41(b) and 56(b). The only difference is that in Section 56(b), the words used are "to stay proceedings" and in Section 41(b) the words used are "to restrain any person from instituting or prosecuting any proceeding". It was, therefore, contended that under the new Section 41(b), no person can be restrained by an injunction from prosecuting in any proceeding in a court not subordinate to that from which the injunction is sought. It was, therefore, argued that the court of the Subordinate Judge at Muzaffarpur being not subordinate to the court of the Subordinate Judge at Begusarai, the injunction could not be issued.
7. Clause (b) of Section 56 of the Old Act, quoted above, was considered in Radha Madhab Jiu v. Rajendra Prasad Bose I.L.R. 12 Pat. 727 on Letters Patent Appeal by a Division Bench of this Court presided over by Kulwant Sahay and Khwaja Mohammad Noor, JJ. Kulwant Sahay, J., who delivered the judgment of the Court, at page 739, observed.
As was pointed out by Sri George Jessel, M.R., in the case of In re Artistic Colour Printing Company (1880) 14 Ch. Div. 502 the Court never did by injunction restrain a proceeding: what it did was to restrain a party to a cause from going on. Therefore, when the Act says, "no cause of proceeding shall be restrained by injunction," it means that no party shall be restrained from going on with his action. As in the present case both the proceedings were pending in the same Court, Clause (b) of Section 56 has no application. The Court can always regulate its Own proceedings. This was pointed out by Mukerji, J. in Ramsadhan Biswas v. Mathura Mohan Hazra (1924) 81 I.C. 2 : A.I.R. 1925 Cal. 233 where the learned Judge observed that the prohibition contained in Clause (b) of Section 56 operates only in respect of Courts which are not subordinate in the sense that they are coordinate or superior and not in respect of the Court itself which must always be taken as competent to regulate its own proceedings. In the above mentioned case in Ram Sadhan Biswas v. Mathura Mohan Hazra (1924) 81 I.C. 2 : A.I.R. 1925 Cal. 233 Mukerji, J. at page 235, further observed that:
It is well settled that temporary injunctions are governed not by the Act but by the provisions of the Civil Procedure Code, Order 39, Rule 1, and a temporary injunction may be granted by a Subordinate Court against a party even in respect of proceedings in a superior court. So far as perpetual injunctions are concerned they are regulated by the Act and an injunction cannot be issued by a Court to stay proceedings in a Court not subordinate to that from which the injunction is issued.
8. Here one Court is not subordinate to the other nor the two proceedings are pending in the same court. The Patna decision, therefore, is not of great use here. But I referred to it because the decision of the learned Single Judge in the Calcutta case just referred to, was approved and quoted in part with approval.
9. Section 37(1) of the New Act of 1963 and Section 53, First Part, dealing with temporary injunctions, of the Old Act of 1877 are answers to the point raised by Mr. Prasad Section 53, First Para, of the old Act of 1877 is as below:
53. Temporary injunctions-Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit, and are regulated by the Code of Civil Procedure.
* * * * Section 37(1) of the New Act of 1963 is as follows:
37. (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.
10. In Amir Dulhin alias Mahamdijan v. Administrator-General of Bengal I.L.R. 23 Cal. 351. Their Lordships, Prinsep and Banerjee, JJ. considered Section 53 and Section 56 of the Old Act of 1877 and, at page 354, in a joint judgment, observed that: -
Section 56 of the Specific Relief Act applies only to perpetual injunctions, as it occurs in the chapter relating to perpetual injunctions, and as temporary injunctions are by the express words of Section 53 left to be regulated by the Code of Civil Procedure which imposes no such restriction on the granting of temporary injunctions as the appellant contends for.
11. Section 37(1) of the New Act, 1963, reproduced above, clearly provides that temporary injunctions, which are to continue until a specified time, or, until the further order of the court, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908. Neither Section 53(First Para.) of the Old Act nor Section 37(1) of the New Act anywhere enacts that the court shall grant only such temporary injunctions as are provided for in the Code. Injunction can be issued only against a named person. It is a remedy In personem which is directed against the litigant and not against the court. Reading Section 37(1) along with Order 39 of the Code of Civil Procedure, it may be inferred that a temporary injunction is obtainable if the conditions mentioned therein are satisfied. From Section 37(1), therefore, it is plain that the Specific Relief Act does not govern temporary injunctions; but Order 39, Rule 1 of the Code of Civil Procedure governs them and even a subordinate court can grant injunction against a party in respect of a proceeding in another court of co-ordinate jurisdiction or in a superior court. It follows, therefore, that as temporary injunctions are governed by Order 39 of the Code and not by Section 41 of the Specific Relief Act, a temporary injunction may be granted by a court against a party even in respect of a proceeding in another court which is not subordinate to it. Even under Section 53 of the Old Act, as Section 56 of the Old Act applied only to perpetual injunctions, temporary injunctions being left by Section 53 of that Act to be regulated by the Civil Procedure Code, Section 56 was not intended to affect injunctions applied for under Order 39, Rule 1, Civil Procedure Code and, as such, the temporary injunction granted by the Subordinate Judge's court at Begusarai restraining the defendants from proceeding with the execution case pending in the court of the Subordinate Judge, Muzaffarpur, which is not a superior court or a subordinate court, was not ultra vires and in granting the temporary injunction the court below did not contravene Section 41(b) of the New Specific Relief Act, 1963.
12. It was however, contended by Mr. Prasad that in view of the amended Rule 1 of Order 39 of the Code of Civil Procedure, amended by the Patna High Court, the order of temporary injunction issued in the case was contrary to it, and, therefore, on that ground also it should be set aside.
13. Rule 1 of Order 39 was amended and after Rule 1, two Provisos were added, which run thus:
Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 of the Specific Relief Act (Act I 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 proceeding, before the Court executing the decree.
Mr. Prasad relies on the first proviso, reproduced above, and submits that temporary injunction cannot be granted under this amended rule if it would contravene the provision of Section 56 of the Old Specific Relief Act, 1877, which has been replaced by Section 41 of the New Specific Relief Act of 1963.
14. I have already held above that even under Section 53 of the Old Specific Relief Act, the Specific Relief Act did not govern the granting of temporary injunctions. The first proviso of the amended Rule 1 of Order 39 of the Code, no doubt, says that no such temporary injunction shall be granted if it contravenes the provision of Section 56 of the Specific Relief Act, 1877; but it has to be read subject to Section 53 of the Act, which as I said before, has been replaced by Sections 37 and 41 of the New Act respectively. When under the Old Act, Section 56 did not debar issue of temporary injunction until specified time in view of Section 53, I cannot understand how temporary injunction under Section 41(b) in view of Section 37(1) cannot be granted. I would, therefore, over-rule this objection.
15. Mr. Prasad, however, contended that both under Section 53 of the Old Specific Relief Act and Section 37(1) of the New Specific Relief Act, temporary injunction can be granted under the Code of Civil Procedure, and, therefore, the amended Rule 1 of Order 39 will govern the present case and in this view temporary injunction could not be granted. But I think, in the instant case, Section 56(a) which is equal to Section 41(a) with certain variation would apply to the facts of the present case. Section 56(a) provides that an injunction cannot be granted to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. Likewise, Section 41(a) of the New Act provides that an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings. Here on the facts of the case "restraint is necessary' to prevent a multiplicity of proceedings, Therefore, the amended Rule 1 of Order 39 of the Code will not debar the court from issuing temporary injunction. In this view, I think the temporary injunction issued is correct.
16. The result, therefore, is that the appeal fails, and is dismissed but, in the circumstances of the case, there will be no order for costs of this Court.