S. S. M. QUADRI, J.

( 1 ) THIS C. R. P. is directed against the order of the learned Subordinate judge,dated July 5, 1993 in lano. 465 of 1993 in O. S. No. 40 of 1993 on the file of the subordinate Judge, Peddapuram, granting stay of execution of the decree, obtained by her, in E. P. No. 3/91 in O. S. No. 27/87 on the file of the Sub-Court, Peddapuram.

( 2 ) SRI Ramachandra Rao, learned counsel for the petitioner, contends that the trial Court acted in excess of jurisdiction in granting stay of sale of plaint schedule property under Section 151 C. P. C. read with section 94 (c) having reached the conclusion that no order could be granted under Order 39 Rule 1 C. P. C. He urges that in view of section 41 (b) of the Specific Relief Act, 1963 no injunction can be granted restraining a person from executing the decree. Sri Subba rao, learned counsel for the respondent, contends that the decree obtained by the petitioner is a collusive decree and the execution of such a decree will cause injury to the respondent, as such the respondent was entitled to the injunction restraining the sale of the property in execution of the decree. However, the learned counsel fairly conceeds that the Order 39 Rule 1 and section 94 (c) are not two alternative heads under which injunction can be sought.

( 3 ) TO appreciate the contentions of the learned counsel, it would be necessary to refer to the relevant facts.

( 4 ) THE petitioner was married to one madduri Hanumantha Rao some time in July, 1979. Alleging that her husband deserted her in September, 1979, she filed a suit, o. S. No. 27 of 1987 on the file of the sub-Court, Peddapuram, for maintenance against her husband. That suit was decreed on August 31,1989. By the decree in that suit for payment of maintenance granted by the court, a charge was created on item-2 of a schedule property therein, which is a house property bearing Door No. 10-10-25, peddapuram Town and which is the subject-matter of the present litigation. In 1991 the petitioner filed E. P. No. 3/91. In execution proceedings the sale of the said house was scheduled to be held on 15-6-1993. There was yet another litigation arising out of the alleged agreement for sale said to have been executed by the husband of the petitioner (Madduri Hanumantha Rao) and others in favour of Chunduru venugopala Krishna and Chunduru satyanarayana Murthy to sell the said house for a consideration of Rs. 39,000-00/- on august 15,1977. For specific performance of the said agreement for sale, the said vendors filed O. S. No. 259 of 1980 on the file of subordinate Judge, Kakinada. That suit was decreed ex parte on March 24, 1981. For execution of the decree passed in the said suit, E. P. No. 277/83 was filed. While so, the decree holder transferred the decree in favour of one Valluri Suryanarayana chowdary. The said E. P. was dismissed, for default on March 19, 1990. Alleging that from the said Valluri Suryanarayana Chowaary, the respondent purchased the said house for a sum of Rs. 30. 000-00/- he filed O. S. No. 40/93 on the file of the Sub-Court, peddapuram for declaration of his title to the said house and for injunction restraining Jhe defendants from bringing to sale the said house in E. P. NO. 3/91 in o. S. No. 27/87. The respondent filed I. A. No. . . 465/93 in O. S. No. 40/93 under Section 151 read with Section 94 (c) C. P. C. for stay of sale. This petitidn was allowed by the learned Subordinate Judge on 5-7-1993, which gave rise to this C. R. P.

( 5 ) THE question which has to be considered is whether the order under revision suffers from any error of jurisdiction.

( 6 ) AS the trial Court purported to grant the order under revision under Section 94 (c) C. P. C. , we shall first exarn ne the provisions of that Section.

( 7 ) SECTION 94 (c) falls in Part VI of the code of Civil Procedure which deals with supplemental proceedings and reads as follows: -"94. In order to prevent the ends of justice from being defeated, the Court may, if it is so p

Click Here to Read the rest of this document