Order 39, Rule 1(c), Civil Procedure Code, as amended by the Andhra High Court, does not enable a court to grant a temporary injunction to restrain a decree-holder from executing a decree obtained by him.

ORDER :

SUBBA RAO, C.J.*:— This is a Letters Patent Appeal against the order of our learned brother Bhimasankaram, J., issuing a temporary injunction against the appellant restraining him from obtaining delivery of items 1 and 3 of the plaint schedule property subject to certain conditions.

2. The facts are simple. The appellant, in execution of a decree in O.S. No. 28 of 1933 on the file of the Subordinate Judge's Court, Visakhapatnam, purchased the said items subject to the rights of Rani of Jaipur. Subsequently the Rani made a gift of those items to the plaintiffs. In execution of the aforesaid decree, the decree-holder purchaser i.e., the appellant, applied for delivery of possession. When notice was given to the Rani, she stated that she had made a gift of the properties to third parties and, therefore, she had no longer any interest in the same. The Court, therefore, made an order of delivery. The respondents filed O.S. No. 9 of 1955 on the file of the Court of the District Judge of Visakhapatnam for a declaration of their title and for a permanent injunction restraining the appellant from taking delivery of items 1 and 3 of lot 1 of the plaint schedule in execution of the decree in O.S. No. 28 of 1933, Sub-Court, Visakhapatnam. The suit was dismissed. The plaintiffs have preferred an appeal to this Court and pending the appeal filed C.M.P. No. 3885 of 1956 for a temporary injunction restraining the appellant from taking delivery of the said items. Bhimasankaram, J., made the aforesaid order. Hence the appeal.

3. Learned counsel for the appellant inter alia contends that the application for temporary injunction restraining the appellant from taking delivery of possession of property in execution of the decree is not maintainable in view of the decision of a Divisional Bench of this High Court in Venkanna v. Venkat Rao1 There, the Divisional Bench of which one of us (Srinivasachari, J.) was a member, held that the expression “cause injury or loss to the plaintiff” in clause (c) of Order 39, rule 1, introduced by the Andhra High Court, would not take in the cases of decree-holders who are executing their decrees.

4. The history of this rule may briefly be stated. Order 39, rule 1, Civil Procedure Code, before clause (c) was added, read thus:

“where in any suit it is proved by affidavit or otherwise

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a 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 order, grant a temporary 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 as the Court thinks fit, until the disposal of the suit or until further orders.”

5. In Peddinti Gopalacharyulu v. Rudra Veeranna2, a Divisional Bench of the Andhra High Court, of which one of us (Chief Justice) was a member, had to consider the scope of that rule in the context of a suit filed by an archaka for a declaration of his occupancy rights in the suit lands against the trustees. That suit was dismissed and the archaka preferred an appeal to the High Court. Pending the appeal, the appellant applied for an injunction restraining the respondents from taking proceedings to recover possession of the lands under section 87 of Madras Act XIX of 1951 pending the disposal of the appeal. The Divisional Bench held that a suit for a declaration that the plaintiff had a right of occupancy in the suit lands and that he could not be disturbed from his possession was not a suit for restraining the defendants from committing injury of any kind within the meaning of Order 39, rule 1(a) of the Civil Procedure Code. After negativing the alternative contention raised by the appellant in that case, on the basis of the inherent jurisdiction of