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1986 Supreme(Ori) 472
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
DINAKRISHNA TRIPATHY (AND AFTER HIM) SUNAMANI TRIPATHY AND OTHERS - APPELLANT
Versus
MANAGING COMMITTEE OF SRI JAGANNATH TEMPLE - RESPONDENT
Civil Revision Nos. 548 and 570 of 1981
Decided On : 27-01-1986
B.H. Mohanty, in C.R. No. 548/81, A.K. Padhi and B.H. Mohanty, in C.R. No. 570/81, for the Appellant; A.B. Misra, S.K. Patnaik and C.R. Nanda, for the Respondent
A court cannot grant an injunction restraining any person from instituting or prosecuting any proceeding in a court of co-ordinate or superior jurisdiction.
Headnote:
INJUNCTION - AD INTERIM INJUNCTION - ORDER 39, RULE 1, CPC - SECTION 41(B), SPECIFIC RELIEF ACT - HOUSE RENT CONTROL ACT - EVICTION - JURISDICTION - EXECUTION OF DECREE - APPOINTMENT OF RECEIVER - DEPOSIT OF RENT - DISPOSAL OF SUIT.
Fact of the Case:
The Petitioners, the legal representatives of the original Plaintiff, filed a suit for title and permanent injunction in respect of a house and land in their possession. The Opposite Party filed a House Rent Control Case for evicting the Petitioners under the House Rent Control Act. The Petitioners challenged the executability of the eviction decree in an application u/s 47, CPC, which was dismissed. They also filed an application for ad interim injunction during the pendency of the suit to restrain the Opposite Party from interfering with their possession on the basis of the eviction order. Both applications were dismissed by the trial court and the appellate court.
Finding of the Court:
The Court held that the Executing Court was justified in rejecting the application u/s 47, CPC, as the order of eviction under the House Rent Control Act was not a nullity. The Court also held that it had no jurisdiction to grant an ad interim injunction restraining the Opposite Party from prosecuting the execution proceeding, as the courts were of co-ordinate jurisdiction and Section 41(b) of the Specific Relief Act barred such injunctions. However, the Court held that it could make such other order as it thought fit under Order 39, Rule 1, CPC, to protect the interests of both parties.
Issues: 1. Whether the Executing Court erred in rejecting the application u/s 47, CPC, challenging the executability of the eviction decree? 2. Whether the Court had jurisdiction to grant an ad interim injunction restraining the Opposite Party from prosecuting the execution proceeding? 3. How could the interests of both parties be protected?
Ratio Decidendi: 1. The Executing Court was justified in rejecting the application u/s 47, CPC, as the order of eviction under the House Rent Control Act was not a nullity. 2. The Court had no jurisdiction to grant an ad interim injunction restraining the Opposite Party from prosecuting the execution proceeding, as the courts were of co-ordinate jurisdiction and Section 41(b) of the Specific Relief Act barred such injunctions. 3. The Court could make such other order as it thought fit under Order 39, Rule 1, CPC, to protect the interests of both parties.
Final Decision: The Court appointed the Petitioners as joint receivers to continue in possession of the disputed property on the condition that they deposit Rs. 500/- in the second week of every month beginning from February, 1986 till disposal of the suit. The Court also directed the Petitioners to deposit the arrear of rent till the end of January, 1986, in such equal monthly instalments as would be directed by the Court. The Court directed the trial court to dispose of the suit by the end of October, 1986.
JUDGMENT :
S.C. Mohapatra, J. - These two Civil Revisions between the same parties relate to a house, the land on which it stands and the adjacent landed property in Cuttack town. The parties being the same and the questions involved being inter-related, both the Civil Revisions are heard analogously and disposed of by this common judgment.
2. The predecessor-in-interest of the Petitioners filed Title Suit No. 55 of 1959 for title and permanent injunction in respect of the land and house in his possession. Opposite party filed House Rent Control Case No. 1 of 1960 for evicting the predecessor-in-interest of the Petitioners under the House Rent Control Act then in force. The suit is now pending in the trial court after remand by this Court. Eviction having been directed by the House Rent Controller, Execution Case No. 13 of 1974 is pending. An application u/s 47, Code of Civil Procedure, filed by the judgment-debtor challenging the executability of the decree and an application under Order 21, Rule 29, Code of Civil Procedure, filed for stay of the Execution Case having been dismissed, endeavour in a second round of attack in 1981 to avoid the eviction order has been frustrated. Like a drowning man catching at a straw, the judgment-debtor tried to defend his possession of the house in another front by filing an application for ad interim injunction during the pendency of the suit to restrain the decree-holder Defendant from interfering with his possession on the basis of the order of eviction in H.R.C. Case No. 1 of 1960. Having failed in the trial court, he approached the appellate court to become un-successful in that forum also. Hence Civil Revision No. 548 of 1981 has been filed to get the order of ad interim injunction. Civil Revision No. 570 of 1981 has been filed to make the execution proceeding dormant. The judgment-debtor Plaintiff has left this mortal world vanquished in the litigations to be substituted by his legal representatives in these two Civil Revisions.
3. The decree-holder in this case is not an individual. It is the Managing Committee of Sri Jagannath Temple, Puri clothed with Statutory power to effectively manage the temple by Shri Jagannath Temple Act, 1954 (Orissa Act XI of 1955). The order of eviction under the House Rent Control Act is not for own use of the landlord but on account of misconduct of the tenant.
4. In the background of the salient facts, it is to be considered:
(a) Whether application u/s 47, CPC in the Execution Case should me allowed to be entertained?
(b) Whether the Court should exercise the Judicial discretion in granting the ad interim injunction in the suit?
(c) How can the interests of both the parties be protected?
5. Mr. B.H. Mohanty, the learned Counsel for the Petitioners submitted that the Executing Court exercised jurisdiction with material irregularity in rejecting the second application u/s 47, Code of Civil Procedure, in the facts and circumstances of this case since the first application was not decided on merits. I am not able to appreciate the submission of Mr. Mohanty in this case. In the execution of an order of eviction by the House Rent Controller under the special statute, the facts found by the Tribunal cannot be interfered with. The present case does not come within that category. It is not brought to my notice that the statutory authorities under the House Rent Control Act had no jurisdiction to order eviction or that on the facts found, the ingredients of eviction are not satisfied. It is only where the order is a nullity, the Executing Court would have jurisdiction to interfere. Accordingly I am satisfied that the Executing Court is justified in rejecting the application u/s 47, Code of Civil Procedure.
6. The appellate court has dismissed the appeal against refusal of the prayer for ad interim injunction in view of Section 41(b) of the Specific Relief Act, 1963 which reads as follows:
41 Injunction when refused: An injuction cannot be granted-
(a) xx xx xx
(b) to restr
