O. 39 R. 1 of the CPC, as amended, does not apply to cases where there is no sale in execution of a decree. The court has inherent jurisdiction under S. 151 of the CPC to grant temporary injunctions in circumstances not covered by O. 39 of the CPC, if the interests of justice require it.

1. The petitioner has come up against an order refusing to grant ad interim injunction against the defendants from taking possession of a property in execution of a decree.

2. The petitioner having been unsuccessful in a proceeding under O. 21 R. 97 of the Civil P. C. (hereinafter referred to as the Code) filed the present suit under O. 21 R. 103 of the Code. The circumstances which gave rise to the suit are as follows. According to the petitioner the house in suit originally belonged to one Md. Hussain who granted a Rehan to one Kupan Rai in the year 1924 who in his turn had assigned his interest to Sobrati (father of the plaintiff) and his brother Teju and delivered possession to them. This was in the year 1926. In the rear 1936 again Md. Hussain granted a second Rehan to Sobrati and Teju. By virtue of these transfers Sobrati and Teju continued to be in possession. In the year 1945 they partitioned their properties and the house in dispute fell to the share of Sobrati, father of this petitioner and after him the petitioner came into and continued to be in possession. There was, however, a partition suit filed by defendant Mahboob against the aforesaid Teju and others. The dispute between the parties was referred to arbitration. As a result there was an award and a decree on its basis. Mahboob, therefore, levied execution and there was an order for delivery of possession. During the course of such delivery there was obstruction by the petitioner giving rise to the proceeding under O. 21 Rule 97 which was decided adversely to the petitioner and hence the suit.

3. The defence case, on the other hand, is that the property belonged to the father of Md. Hussain, namely Sher All who has transferred the same as dower debt to his wife Rahiman in the year 1314 Fs and Rahim had made a gift of the said property to her grandson Sher Mohammad. The defendants thus say that the plaintiff had acquired no title by virtue of the mortgage executed by Md. Hussain.

4. During the pendency of the suit the petitioner filed an application for injunction against the defendants from taking possession of the property in execution of the decree drawn up on the basis of the arbitrators award. The trial court found against the plaintiff on all the points - existence of prima facie case, balance of convenience and irreparable loss. The appellate Court, however, came to different conclusions. It found that the petitioner had been in possession of the property since 1931; that he was not bound by the decree as a result of arbitration proceeding not being a party thereto and thus found that the plaintiffs interest had not been affected thereby. It, however, found that in view of R. 1 of O. 39 of the Code as amended by this court he could not grant the prayer for injunction because the petitioner in the present case had an opportunity of making and had made a claim during the pendency of the proceeding.

5. Learned counsel for the petitioner has, therefore, urged that O. 39 R. 1 has no application in the present case and thus it could not be set up as a bar to the grant of injunction. Secondly, he has urged that in view of the finding that the petitioner has been in possession of the house since 1931 as evidenced by the documents it is obvious that the balance of convenience lies in his favour and it would be an irreparable injury to him if he is ousted from the house at this juncture.

6. The crucial point for determination in this case is whether R. 1 of O. 39 as amended by this Court stands in the way of grant of an order of injunction. The lower appellate court having found on all points in favour of the petitioner the only point which, as he says, debarring him from issuing the order of injunction is R. 1 of O. 39 as amended, which reads as follows :

"Where in any suit it is proved by affidavit or otherwise - (a) that any property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in