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Madhya Pradesh High Court
P. K. TARE,S. M. N. RAINA
Surendrasingh - Appellant
Versus
Lal Sheoraj Bahadursingh - Respondent
Decided On : 09/03/1973
The Court is competent to grant an injunction in exercise of its inherent powers independent of the provisions of Rules 1 and 2 of Order 39 of the Code of Civil Procedure and, therefore, it can grant an injunction even in a case which does not fall strictly within the purview of the aforesaid Rules. It must, however, be borne in mind that the inherent powers are to be exercised by the Court in exceptional circumstances. AIR 1962 SC 527 relied on. [Para 9
In India the Courts do not possess Equity jurisdiction independent of their ordinary jurisdiction under the law and the principles of equity can be applied by the Courts only to the extent they are imported in the statutory law within the scope of which the Courts function. However, the principles of equity are extremely useful for regulating the grant of injunctions whether permanent or temporary. [Para 11
(2) Civil P.C., 1908 - O. 39, R. 2 - word 'injury' - meaning of - illegal or void decree - may also cause an 'injury'.
The word 'injury' occurring in Order 39, Rule 2, means an act which harms, hurts or damages irrespective of the consideration how the harm; hurt or damage may arise. If 'injury' is construed in the sense of harm or damage to the right of a person or property, a decree which prima facie appears to be illegal or void can also be construed as causing injury to him. [Para 13
(3) Civil P.C. 1908 - O. 39 Rr. 1 & 2 - object of temporary injunction - matters to be seen - injunction against a decree - exparte injunction against a decree.
The object of granting a temporary or interlocutory injunction is to preserve status quo while rights are being litigated, and the onus is on the plaintiff to show his need for the injunction. This does not mean that he has to prove his case before he can claim interlocutory relief. He has only to make out a substantial case to be considered which may very well succeed when it comes to be heard. The principles which govern the grant of a temporary injunction may be summarised as below:
(i) Whether the applicant has a prima facie case in his favour;
(ii) Whether an irreparable injury will be caused to the applicant if the injunction is not granted during the pendency of the legal proceedings.
(iii) Whether, the balance of convenience is in favour of the applicant. [Para 14
Decree-holder should ordinarily not be restrained from enjoying the fruits of the decree obtained by him after a successful litigation. Merely, because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour and a very heavy burden would be on the, applicant to produce strong and cogent prima facie evidence to satisfy the Court that the grounds on which the decree or order is challenged are fairly strong and that there is a reasonable possibility of the success of such suit. [Para 15
Since there is an initial presumption of prima facie title in favour of the decree-holder, it would not be proper for the Court to grant a temporary injunction ex parts in such a case without giving the decree-holder an opportunity of being heard unless there are exceptional circumstances to justify it. If after hearing both the sides the Court is convinced prima facie that the decree or order has been obtained by fraud or is otherwise not binding or enforceable against the applicant, injunction during the pendency of the suit may be granted. [Para 18 & 19
RAINA, J. : - In Miscellaneous (First) Appeal No. 7 of 1972 a question arose whether a temporary injunction can be issued to restrain a decree-holder from executing his decree against his judgment-debtor. Shiv Dayal, J. who heard the appeal referred the following points for decision by the Division Bench on account of divergent views having been expressed by this Court in different cases : -
(1) Whether in a suit instituted by a judgment-debtor on the ground of fraud or any such other ground, a temporary injunction can be granted restraining the decree-holder from executing his decree against the plaintiff.
(2) When a suit is instituted on the ground that the decree is not binding on the plaintiff and that the execution of the decree will be prejudicial to the plaintiff's right, by a person, who was not a party to the suit in which the decree was passed, can a temporary injunction be issued to restrain the decree-holder from executing his decree aginst his judgment-debtor.
2. Shiv Dayal, J. has pointed out that in Miscellaneous (First) Appeal No 84 of 1962 decided on November, 23, 1962, (Madh Pra) Bhargava, J. held that no order of injunction can be made under Order 39, Rule 1 or 2 or under Section 151 of the Code of Civil Procedure to restrain the decree-holder from executing the decree in his favour as long as it stands. In Jalamsingh v. Smt. Lilabai, 1967 MPLJ (Notes) 111 Tare, J. (as he then was) drew a distinction between a case where the plaintiff is bound by the decree and one where he is not so bound relying on the decision of Shrivastava, J. in Firojkhan v. Mumtaj Hussain, 1962 Jab LJ (SN) 247.
3. Before proceeding to discuss the various authorities cited before us, we would like to observe at the outset that the question whether an injunction can be granted to restrain a decree-holder from executing his decree, can be considered from two aspects, namely, the jurisdiction of the Court to grant an injunction and the propriety of granting such an injunction. We propose to deal with the question of jurisdiction first.
4. So far as jurisdiction is concerned, the line of reasoning adopted in some cases has been that the Court has jurisdiction to grant a temporary injunction only under Order 39, Rules (1) and (2) and since the execution of a decree cannot be construed as an injury within the meaning of sub-rule (1) of Rule 2 of Order 39, no injunction can be granted to restrain the decree-holder from executing his decree. In Abdul Hamid Khan v. Tridip Kumar Chanda, AIR 1953 Assam 104 and M/s. Ratanchand Jai Gopal v. Mian Saif Uddin, AIR 1961 J and K 29 it was held that the execution of a decree is in the exercise of a legal right and as such cannot amount to an injury within the meaning of sub-rule (1) of Rule 2 of Order 39 of the Code of Civil Procedure. It was further held that a Civil Court has no inherent jurisdiction to grant a temporary injunction. This line of reasoning was adopted by the Madhya Bharat High Court in a number of cases, namely, Ramnarain v. Shrikrishna, AIR 1956 Madh Bha 75 and Hemant Kumar v. Ayodhya Prasad, AIR 1957 Madh Bha 95. Following these decisions, Bhargava, J. held in Abdul Rahim v. Safarmal, 1964 MPLJ (SN) 14 that no order of injunction can be made under Order 39, Rule 1 or 2 or under Section 151 of the Code of Civil Procedure to restrain a decree-holder from executing a decree in his favour so long as the decree stands.
5. It would be pertinent here to mention that T. C. Shrivastava, J. in Mohd. Feroz Khan v. Mulla Mumtaz Hussain, 1963 MPLJ (SN) 24 apparently drew a distinction between a case where an injunction is sought by judgment-debtor and one where an injunction is sought by a third party. It was held that injunction at the instance of a third party could be granted in order to maintain status quo. This approach was developed in 1967 MPLJ (SN) 111. It was held in that case that where a person is not bound by an earlier decree or order of a Court or Tribunal an injunction may be gr
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