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1. After the purchase of a property, at auction sale in execution of a decree in Money Suit No. 181 of 1953 by one Gangadin against one Mahabir, the Opposite Party Kissen Lal Choudhury instituted a suit for declaration of his title and confirmation of possession which, it was said, was obtained through court alter purchase at the auction sale. A prayer was made for a temporary injunction restraining the defendant Kali Charan Shaw from proceeding with three Small Causes Court suits which the latter had instituted on claims of rent for portions of the premises and from proceeding with the title appeal which was pending in the Appellate Court against a decree obtained by him against a tenant of another portion of the premises. For a proper understanding of the dispute, it is necessary to refer to the previous history of the litigation in connection with this premises. The money suit in execution of the decree in which Kissen Lal made his purchase was brought on 26-11-1953 and the property was attached before judgment. On the attachment being effected, the present petitioner Kali Charan Shaw put in a claim to the property, claiming to have purchased the property from the defendant by a kobala dated 19-3-1952. His prayer was that the property should be released from attachment. It appears that Kali Charan admitted that after he purchased the property he let out the premises to Mahabir on a monthly rent and Mahabir was in possession of the premises at the date of attachment. The learned Munsif being of opinion that on the claimant's own case the defendant had some interest and was in possession of the property as such, there was no reason why the attachment should be lifted. After stating that the attachment related to whatever rights Mahabir had in the property and it could not affect the rights, if any, which the plaintiff had in it, the learned Judge ordered that the Miscellaneous Case be dismissed. No suit, as contemplated under Order 21, Rule 63 of the Civil Procedure Code, was brought against this order. Kali Charan, however, brought an ejectment suit against Mahabir and that suit was decreed on 22-4-1955. It is said that on 9-7-1955, Kali Charan got khas possession in execution of the ejectment decree and has been realising rent from the tenants in occupation of different portions of the premises, that actually he has obtained a decree of ejectment against one tenant and has realised rents by suit or amicably from others and had instituted three other suits "for rent, S. C. C. Suits Nos. 2409, 1410, 2411 of 1957, which were pending. As already stated, Gangadin's money suit having been decreed, Mahabir's property in the promises was put to auction in execution thereof and the present opposite party Kissen Lal purchased the same. It is his case that after the purchase he obtained possession through court.

6. I have, therefore, come to the conclusion that the learned Judge is wrong in thinking that because Kali Charan had not brought the suit contemplated by Order 21, Rule 63 of the Civil Procedure Code against the order made in the claim case, he is precluded from putting forward his claim on the ground of purchase.

7. It appears that once having come to the conclusion that it was not open to the Trial Court to consider the defendant's plea of purchase, the learned Judge did not find it necessary to consider whether the learned Munsiff was right in his view that the defendant Kali Charan was in actual possession and that "there is no convincing evidence of any overt act on the part of the plaintiff in the collection of rent from the tenants of the suit property." As far as I can find, the case, that this petitioner brought a suit for ejectment against Mahabir that was decreed and obtained possession of the property in execution of that decree of ejectment, does not appear to be disputed. The Trial Court has referred to the writ of delivery of possession issued in favour of Kali Charan in Title Execution Case No. 123 of 1955. If, as it prima facie appears, the plaintiff's auction purchase took place long after Muhabir's tenancy right in the property had ceased, it is difficult to see what the plaintiff did acquire by the purchase. It is not proper and necessary, however, to come to a definite finding at this stage on the question whether the plaintiff had acquired any right and, if so, what, by the purchase. The facts, however, that Kali Charan had obtained a decree of ejectment against Mahabir, obtained possession of the premises through court and was active in the matter of collection of rents, justify, in my opinion, the view taken by the Trial Court that it would be improper to interfere with Kali Charan's proceeding with the suits or the title appeal. In not considering these facts, the learned Additional District Judge has, in my opinion, acted irregularly in the exercise of jurisdiction. The granting or refusal of an order of injunction is in the discretion of the Trial Court and when the Trial Court has in the exercise of discretion decided to grant or refuse the prayer, it is certainly the right and duty of the Court of Appeal to set aside its order and make its own order and exercise its own discretion, when it is satisfied that there was no exercise of judicial discretion by the Trial Court or that the ground or the basis of which the discretion has been exercised was wrong. The learned Judge, who heard the appeal, being of opinion that it is not open to the Trial Court to take notice of the plea of purchase, would be entitled to substitute his own discretion in the matter for the discretion of the Trial Court. It was still necessary however, for him, to take into consideration other circumstances, namely, the question of possession before he made his own order. As I have mentioned earlier, the learned Judge did not think it necessary to consider the question of possession.