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I.A.ANSARI
Yogesh Shah – Appellant
Versus
Dharmeswari Devi alias Dharmeswari Devi – Respondent
Key Points: - The judgment analyzes whether Order XXXIX, Rules 1 and 2 apply to an application for readmission of an appeal and the role of Section 151 in granting temporary injunction in such a proceeding (!) (!) (!) . - It discusses the applicability of Section 141 to proceedings arising under Order XLI Rule 19 (readmission of appeal) and whether such proceedings are "proceedings" within Section 141 (!) (!) (!) . - It assesses the power to grant temporary injunction under Section 94(c) in such proceedings and concludes that if Section 94(c) is not applicable, the court may rely on inherent powers under Section 151 to grant temporary injunction in the interest of ends of justice (!) (!) (!) (!) (!) . - It holds that an application for readmission of an appeal is an independent proceeding, not merely an extension of the suit or appeal, and thus Order XXXIX may not automatically apply (!) (!) . - It ultimately modifies the lower court order to restrain construction or alienation during the pending readmission process, with a note that if the appeal is readmitted, appropriate injunction orders may be further considered (!) (!) . - It cites jurisprudence on the limits of inherent powers under Section 151 when express provisions exist in the Code (!) (!) .
I.A. Ansari, J.
1. The present writ, petitioners instituted, as plaintiffs, Title Suit No. 91/97, in the Court of the Civil Judge (Senior Division), No. 2, Kamrup, Guwahati, seeking declaration of their rights, title and interest over the suit property and recovery of possession thereof by evicting the defendant-respondent herein from the suit property. By the judgment and order, dated 24-12-2003, the said suit was decreed in favour of the plaintiffs-petitioners. The decree, so granted, came to be challenged by the defendant-respondent herein, as appellant, in Title Appeal No. 1/2004. When the appeal came up for hearing on 27-9-2004, the counsel for the defendant-respondent was found absent. The appeal was, therefore, dismissed for default on 27-9-94.
2. A petition seeking re-admission of the appeal was made by the defendant respondent herein on 12-4-2004. Pending disposal of the petition for re-admission of the appeal, which had been filed by the defendant, the decree, in question, was executed on 21-5-2005, Though the defendant filed a petition for stay of the execution of the decree pending re-admission of the appeal, the Court declined to stay the decree on the ground that t
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