The main legal point established in the judgment is that the interdict in S.41(b) of the Specific Relief Act, 1963, does not apply when an injunction is to be issued in respect of proceedings pending in the same court.

Thomas, J.

A question of law has been mooted in this appeal, whether S.41(b) of the Specific Relief Act, 1963 (for short 'the Act') would preveJlt^eorjit from granting injunction in respect Of proceedings pending in the same court. Learned counsel for the appellant canvassed that the decision in Raghavan v. Sankaran (1992 (2) KLT 959) rendered by a learned single judge of this Court is not correct law.

2. Appellant is the third defendant in a suit for partition instituted by her two brothers-in-law. The impugned order is a temporary injunction which restrains the appellant from proceeding with an earlier suit filed by her (O.S.No.104/86) in the same court. More facts are these:

3. Suit properties belonged to the father-in-law of the appellant (Chami by name) who died in 1978. Chami was survived by his widow and four children. Appellant is the widow of Sahadevan, one of the sons of Chami. (Sahadevan died in 1984). Appellant filed O.S. No. 104/86 in the Sub Court, Palakkad against her mother-in-law for partition of the present suit property. In the said suit present plaintiffs were not parties, as the appellant then contended mat there was an oral partition in the family iri 1969 in which the suit property was allotted to the share of two sons of Chami (Chandran and saliadevan) and that the said Chandran (who is second defendant in the present suit) had sold his half right in favour of Sahadevan in 1972. A preliminary decree has been passed by the court in the said suit declaring the right claimed by the appellant.

4. Plaintiffs contended in the present suit filed in the same Sub Court that appellant is entitled only to 1/10th share in the suit property and that the plaintiffs put together are entitled to 4/1 Oth shares. When appellant admitted that the property belonged to Chanii who died only in 1978, how could the appellant possibly resist the plaintiffs' stand that the oral partition of 1969 has no legal force. If no registered document has been created, the right of Chami could not have been transferred to Chandran or Sahadevan. So priraa facie the plaintiffs are entitled to the share in the suit property. The next question, therefore, is whether the injunction order prayed for could have been granted in law.

5. Learned counsel for the appellant contended that S.41(b) of the Act contains an embargo against grant of injunction restraining a person from prosecuting any legal proceeding in a court of law and that embargo would cover the earlier suit (O.S. No. 104/86). S.41(b) of the Act reads thus:

"Injunction when refused.-An injunction cannot be granted

(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought".

There would have been no difficulty if the earlier suit was pending in a court which is subordinate to the court which passed the impugned order because the interdict provided in S.41(b) would not then be applicable at all. Equally so, there would have been no difficulty if the earlier suit was pending in a superior court since the embargo in the section would apply to such a case. In a third alternative, even if the earlier suit was pending in another court of equal status the position would not have been different in view of the principle of law laid down by the Supreme Court in Cotton Corporation of India Limited v. United Industrial Bank (AIR 1983 SC 1272). This is on the premise that such a court is co-ordinate with the court before which the application for injunction is made.

6. But the position in this case is that the earlier suit is pending in the same court. Hence the question is whether the embargo envisaged in S.41(b) would prevent that court from 'granting the injunction in respect of a proceeding pending in that court. The Supreme Court in Cotton Corporation of India's case (cited supra) has covered a wide region pertaining to S.41(b) of the Act. But the Supreme Court has left this point unresolved with the obser