Inherent power of High Court to grant interim injunction.

Horwill, J.-The appellant filed a suit for partition. It was opposed by the second defendant (respondent (on the ground that the appellant had no right to the property, because the person from whom the property was obtained, i.e., the first defendant, was not the adopted son of the second defendant. The suit was decreed; and the appeal to the District Court and the second appeal to this Court by the present respondent were unsuccessful. The respondent thereupon filed a suit in the District Court, Anantapur, which is still pending, for a declaration that the decree passed in the former suit was obtained by fraud and was therefore not binding on her. With the plaint she filed an application for a temporary injunction to restrain the Court from passing a final decree in the partition suit. The District Judge dismissed the application, whereupon the respondent filed C.M.A. No. 599 of 1949 to this Court, which is pending. With the appeal the respondent filed an application for an interim injunction to have effect during the pendency of C.M.A. No. 599 of 1949. The learned Judge who heard this application refused to consider the main question which arose in the appeal, i.e., whether an injunction should or could have been granted by the District Judge, and passed an order which he thought a just and convenient one pending the disposal of the appeal, by issuing an interim injunction upon terms restraining the appellant from applying for the passing of the final decree. It is against this order of the learned Judge that this Letters Patent Appeal has been filed.

It has been argued by the learned advocate for the respondent in support of the order passed that the learned Judge was right in refusing to pass an order which would prejudice the hearing of the Civil Miscellaneous Appeal and that the only consideration in an application for an interim order is what is just and convenient. This argument however overlooks the fact that the learned Judge could pass an order of interim injunction only under Order 39, rule 1, and that it was therefore incumbent on him, if he contemplated passing such an order, to consider whether Order 39 applied to the facts of the case. He had no jurisdiction to pass an order of injunction merely because he considered it to be in accordance with equity and good conscience; for in the exercise of the appellate jurisdiction of this Court over moffussil proceedings he had no inherent power to pass such an order.

The learned advocate for the respondent relies on a decision of the Calcutta High Court in Gunabala Chowdhurani v. Hem Nalini Chowdhurani1; but the learned Judges in that case do not say a word about Order 39; nor does their judgment suggest that they considered whether that Order had any applicability to the fact before them. It is not quite clear that an order under Order 39, rule 1 would not have been applicable to the facts of that case, which were not quite the same as those before us, although there, too, the suit was one to set aside a decree on the ground of fraud. All that the learned Judges said which is at all material to the matter before us was:

“It was pointed out that having regard to the fact that the suit was for a permanent injunction the denial of a temporary injunction would be to defeat the object of this suit... The learned Judge has found that if a temporary injunction be refused, then ‘it will have’, to use his own words ‘the unfortunate effect of a denial of justice to a helpless widow’.”

The learned Judges thereupon dismissed the appeal without further discussion. It would appear from Mulla that the Calcutta High Court holds the view that the powers of a Chartered High Court in the matter of issuing injunctions are not circumscribed by the provisions of this section (Order 39), but the Madras High Court has held that the High Court has no inherent power to grant an injunction in cases not governed by Order 39. That the High Court has no power in the exercise of its appellate ju