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1971 Supreme(Gau) 30
GAUHATI HIGH COURT
B.N.Sarma, J.
Mira Rani Das -Appellant
Versus
Forman Ali -Respondent
Civil Revision No. 151 of 1969
Decided On : 07-05-1971
M.A.Laskar, B.K.Das
The execution of a lawful decree which has not been set aside by any superior and competent court cannot be restrained by a temporary injunction under Rule 1 or 2 or Order 39 of the Code of Civil Procedure.
Headnote:
INJUNCTION - EXECUTION OF DECREE - [ORDER 39 RULE 1, 2 CPC] - Execution of a lawful decree which has not been set aside by any superior and competent court cannot be restrained by a temporary injunction under Rule 1 or 2 or Order 39 of the Code of Civil Procedure.
Fact of the Case:
Petitioners obtained a decree in a title suit and executed it to obtain possession of the suit land. The defendants, who were in possession of the land as tenants, filed a suit for declaration of their jote right over the land and for a perpetual injunction against the petitioners restraining them from taking possession. During the pendency of the suit, the defendants obtained a temporary injunction from the Assistant District Judge restraining the petitioners from taking possession of the land. The petitioners challenged the injunction order by way of a revision petition.
Finding of the Court:
The court held that the execution of a lawful decree which has not been set aside by any superior and competent court cannot be restrained by a temporary injunction under Rule 1 or 2 or Order 39 of the Code of Civil Procedure. The court further held that the delivery of possession of the suit land to the petitioners in execution of the decree was not a nullity in law, even if it was obtained by suppressing the fact that there was a temporary injunction against them. Therefore, the court set aside the temporary injunction granted by the Assistant District Judge and restored the order of the Munsiff dismissing the defendants' application for temporary injunction.
Issues: 1. Whether the execution of a lawful decree can be restrained by a temporary injunction? 2. Whether the delivery of possession of the suit land to the petitioners in execution of the decree was a nullity in law?
Ratio Decidendi: 1. The court held that the execution of a lawful decree which has not been set aside by any superior and competent court cannot be restrained by a temporary injunction under Rule 1 or 2 or Order 39 of the Code of Civil Procedure. The court relied on the earlier decisions of the court in Mt. Ladi Agarwallani v. Kewalraj Sethi and Upendra Chandra Barua v. Nabin Chandra Sutradhar, which held that the execution of a lawful decree is in exercise of a legal right cannot be regarded as an injury within the meaning of Order 39, Rule 2 of the Civil Procedure Code, for granting a temporary injunction. 2. The court held that the delivery of possession of the suit land to the petitioners in execution of the decree was not a nullity in law, even if it was obtained by suppressing the fact that there was a temporary injunction against them. The court relied on the decision of the Supreme Court in Mulraj v. Murty Raghunathji, which held that an order of injunction is not addressed to the court and if the court proceeds in contravention of the injunction order, the proceedings are not a nullity.
Final Decision: The court allowed the revision petition, set aside the temporary injunction granted by the Assistant District Judge, and restored the order of the Munsiff dismissing the defendants' application for temporary injunction.
2. The suit land originally belonged to one Nadia Chand Das and it was in his own possession. Nadia Chand Das mortgaged with possession a part of the land to Must. Sajida Bibi, wife of O. P. No. 1 and another part to one Guleswar Ali. After this, Nadia Chand Das made an agreement with the petitioner Mira Rani and one Sushil Chandra Das for sale of the land on receipt of some advance. As he failed to execute the deed as stipulated, Mira Rani and Sushil Das filed a title suit being T. S. No. 18/64, against Nadia Chand Das and the above two mortgagees for getting a sale deed from Nadia Chand Das and for Khas possession. The said suit was decreed. The two mortgagees received their mortgage money through court and their mortgages were duly re-deemed. Nadia Chand Das also got his due share and thereafter executed a sale deed in favour of the decree-holders. After this, the petitioner Khanesh Chandra Das, husband of petitioner Mira Rani, purchased the share of Sushil Chandra Das under a registered kabala and then the petitioners put the decree into execution, for khas possession, in Title Execution Case No. 9/ 68 in the Court of the Assistant District Judge.
3. The O. Ps filed an objection in the said execution case claiming that they are in occupation of the decretal land as tenants under Nadia Chand Das and have acquired occupancy right over the same and that as such the decree-holders were not entitled to get khas possession. Their objection was dismissed Thereafter the O. Ps filed Title Suit No. 89/69 in the Court of the Munsiff, Silchar for declaration of their jote right over the suit land and for a perpetual injunction against the petitioners restraining them from taking possession over the land in execution of the decree obtained in T. S. No. 18/64. They also filed an application for temporary injunction restraining the petitioners from taking such possession till disposal of the suit. The Munsiff granted an ad interim injunction, but. later, after hearing both the parties vacated the interim injunction and dismissed the application for temporary injunction. The O. Ps. took an appeal before the Assistant District Judge and obtained a fresh ad interim injunction till disposal of the appeal. It may be mentioned here that during the pendency of the above Misc. Appeal, the petitioners obtained khas possession over the suit land on 10-9-69 in Title Execution Case No. 9/68 and this possession was confirmed by the Court on 16-9-69.
4. On hearing both the parties learned Assistant District Judge, by his order dt. 29-9-69, reversed the order of the Munsiff and allowed the Misc. Appeal and the ad interim injunction, earlier granted by him, was made absolute. In so doing, the learned Assistant District Judge held that the petitioners obtained delivery of possession in Title Execution Case No. 9/68 by suppressing the order of temporary injunction granted in the Misc. Appeal and as such, the injunction order must sustain in spite of the delivery of possession.
5. Being aggrieved by the order of the learned Assistant District Judge dated 29-9-69 passed in the aforesaid Misc. Appeal, the petitioners, who are respondents in the said appeal, have come up with the present revision petition.
6. The first contention of Mr. Das, the learned counsel for the petitioners was that the learned Assistant District Judge erred in law and acted beyond his jurisdiction in granting the temporary injunction restraining the petitioners from executing the decree, which was lawfully obtained by them in Title Suit No. 18/64 and which has not yet been set
