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Showing contexts for: temporary injunction order in Jagdishbhai Madhubhai Patel vs Saraswatiben Wd/O Asharam Revendas on 29 July, 2019Matching Fragments
27. I must bear in mind that when an order of temporary injunction is granted by the court under Order 39, Rule 1 of the Code or when a decree for permanent injunction is passed by the civil court, it involves the following three stages:
(A) The first stage is the issue of an order of temporary injunction or passing of a decree for permanent injunction.
When a petition under Order 39, Rule 1 of the Code is filed by a party, the court being satisfied that the conditions prescribed under Order 39, Rule 1 of the Code are satisfied, may issue an order of temporary injunction in favour of the party, who has applied for the same. Similarly, the court after full trial of a suit and upon the merits of the case, may pass a decree for permanent injunction in favour of a party. There is specific provision in the Code namely Order 39, Rule 1 dealing with the grant of the order of temporary injunction. Section 38 of the Specific Relief Act deals with the circumstances under which a decree for perpetual injunction can be passed by the courts.
(B) The second stage is the implementation of the order of temporary injunction or decree granting perpetual injunction. There is no specific provision under the Code dealing with the implementation of the order of temporary injunction or a decree for perpetual injunction.
(C ) The third stage is the punishment for disobedience of the order of injunction. Order 39, Rule 2A of the Code deals with the consequences of disobedience or breach of injunction or other orders made under Order 39, Rule 1 of the Code. Order 21, Rule 32 of the Code says that where a party against whom a decree for injunction has been passed, has had an opportunity of obeying the decree but has willfully failed to obey it, the decree for injunction may be enforced by his detention in civil prison or by the attachment of his property or by both. Thus, the Code contains specific provision with regard to the grant of an order of temporary injunction and for punishing the party who disobeys the order of temporary injunction and the decree for perpetual injunction. However, there is no provision in the Code providing for the implementation of the order of temporary injunction or decree for perpetual injunction granted by the courts. When there is no specific provision of law which is sufficient to implement the order of temporary injunction or the decree for perpetual injunction granted by the court, there is no good reason why the provisions of Section 151 of the Code cannot be invoked for the said purpose to render justice or to redress the wrong, because, the courts should not only have the power to pass an order, but also should have the power to implement the said order. Therefore, when a party has obtained an order of temporary injunction from a court under Order 39, Rule 1 of the Code and the other party against whom the order of injunction is passed disobeys the same, the aggrieved party can certainly approach the court invoking the power of the court under Section 151 and also pray in peculiar circumstances for police aid for the enforcement of the order of temporary injunction. When it is brought to the notice of the court that the enforcement of the order of temporary injunction is sought to be prevented or obstructed, the court in exercise of the inherent powers under Section 151, can even direct the police authorities to render all aid to the aggrieved party in the enforcement of the order of the injunction granted by the court in order to render complete justice. It must be remembered, by ordering police help to the party who has obtained an order of temporary injunction, the court merely takes the follow-up steps to implement its earlier order of injunction. In appropriate cases, where the court finds that a party who had secured an order of injunction from the court is not in a position to have its full benefit owing either to obstruction or non-co-operation of the other side, it is always open to the court to direct the police authorities to see that its order is obeyed. As observed by the Full Bench of the Bombay High Court in Century Flour Mills Ltd. v. Suppiah (1975)2 M.L.J. 54, when there is a violation of an order of injunction granted by the civil court, or when something has been, done in disobedience of such an order of injunction, it is the duty of the court as a matter of judicial Policy to undo the wrong done in disobedience of the court's order and the power to enforce the order of injunction by ordering police aid is available under Section 151 of the Code.
16. I may briefly pause here to point out that since an application for injunction, made under Order XXXIX, Rules 1 and 2 lies only during the pendency of the suit or appeal, it logically follows that though an application for temporary injunction, made under Order XXXIX, Rules 1 and 2, are registered as miscellaneous proceedings, such applications for temporary injunction, do not really give rise to 'proceedings' within the meaning of Section 141, for, application for temporary injunction can neither be treated as a 'proceeding' in the nature of an original suit nor can it be treated as a proceeding, which is independent of the existence of the suit or the appeal. No wonder, therefore, that in Shiv Shakti Co-op. Housing v. Swaraj Developers, reported in (2003) 6 SCC 659 : (AIR 2003 SC 2434), while summarizing the effect of the recent amendments to the Code, the Apex Court observed thus :
141. Thus, granting of temporary injunction or refusing to grant temporary injunction and/or affirming temporary injunction by an appellate Court does not end the 'proceeding'; hence, such a temporary order of injunction, in the light of the Shiv Shakti Co-op. Housing (supra), is not revisable.
18. What may, now, be noted is that in Munshi Ram v. Banwari Lal (AIR 1962 SC 903), a two Judges Bench of the Supreme Court held that it was competent for the Court, before which an award by an arbitrator is filed, to pass a decree in terms of a compromise reached by the parties to the arbitration award, though the compromise entered into by the parties may be at variance with the arbitral award. Referring to the decision in Munshi Ram (supra), a two Judges Bench of the Supreme Court observed and held, in Ram Chandra Agarwal v. State of Uttar Pradesh, (AIR 1966 SC 1888) thus, "Similarly, recently this Court has held in Munshi Ram v. Banwari Lal, AIR 1962 SC 903, that under Section 41 of the Arbitration Act and also under Section 141, CPC, it was competent, for the Court, before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof, to permit parties to compromise their dispute under O. XXIII, R. 3, CPC. Though there is no discussion, this Court has acted upon the view that the expression "civil proceeding" in S. 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian, etc., but it applies also to a proceeding which is not an original proceeding."