A party cannot be allowed to take advantage of the pendency of an appeal to defeat the order which may eventually be passed in favour of the appellant.

1. This petn. in revn. has been filed by the pltf. against an order of the learned Munsif of Purulia dated 29-5-1950 in Title Suit No. 47 of 1950.

2. The facts leading to this appln. may be briefly stated as follows :

3. The pltf. instituted the suit in question for a permanent injunction against the principal defts. who are the opposite party here restraining them from causing obstruction to a certain latrine by making constructions so as to prevent the methar from servicing the latrine in question & also for removal of the construction. The pltf.s case is that he purchased a house belonging to one Hamidunnisa on 10-8 1948. He has been making certain construction and has also constructed a latrine by the side of the privy in the house of Hamidunnisa. He alleges that the defts. have their residential house contiguous east of the pltf.s land & building, that the latrine in the pltf.s house used to be serviced through a galli from a very long time & that the defts. commenced constructing a gate & a door over the said galli near the trap-door of the pltf s latrine & thereby the pltf. apprehended that the defts. by such a construction would stop the servicing of the pltf s latrine through the galli. He, therefore, instituted the suit with the prayers aforesaid. The day when the suit was instituted, that is, on 4-2-1950 the pltf. also filed an appln. for ad interim injunction restraining the defts. from constructing the building so as to block the passage in question & the learned Munsif, before whom the suit was filed, granted an ad interim injunction & issued notice upon the defts. opposite party to show cause against this order. Eventually after hearing the parties the learned Munsif on 1-3-1950, dissolved the injunction. Against this order the petnr. preferred an appeal to the learned Dist. J. of Manbhum-Singbhum on 7-3-1950. He could not prefer the appeal earlier because the Holi holidays intervened & the learned Dist. J., after hearing the parties, on 11-5-1950, allowed the appeal. The learned Dist. J, in doing so ordered that the ad interim order of injunction passed by the learned Munsif should be made absolute till the disposal of the suit. I should have stated that on the day the appeal was filed the appellate Gt. also had granted an ad interim injunction order. In the meantime it appears the defts opposite party taking advantage of the order of the learned Munsif vacating the order of ad interim injunction on 1-3-1950 & the delay, which was very natural, in filing the appeal on 7 3 1950, hastened on with the construction. The petnr. moved the learned Munsif for directing the opposite party to remove the construction which had been made during this period, that is, between the date of the vacating of the ad interim order by the learned Munsif on 1-3-1950 & the date of filing of the appeal & the ad interim injunction order by the appellate Ct. on 7-3-1950. The learned Munsif by his order dated 29-5-1950 refused to interfere & hence the present appln. The Munsif observed in his order that the construction by ihe defts during the period was legally authorised because there was nothing to prevent the deft.- petnrs. from doing so.

4. It is contended by Mr. B. C. De on behalf of the petnr. that by virtue of the appellate order of the learned Dist J. he was relegated to ihe same position as he occupiedwhen the ad interim order was passed by the learned Munsif on 1-3-1950, & any construction made with indecent haste by the defts. opposite party during the period in question should have been ordered to be demolished because the conduct of the opposite party really amounted to over-reaching the Ct. knowing as they did not (that?) an appeal against the order of the learned Munsif would be filed by the petnr. without any unreasonable delay. In support of his contention he relies upon several English & Indian authorities. He refer3 to a decision in Daniel V/s. Ferguson, (1891) 2 ch. D. 27 : (39 w. R. 599). In that case the def