( 1. ) THIS is an appeal by the plaintiff against an order dated 15-11-1971, rejecting the application for grant of temporary injunction against recovery of Sales Tax Officer, Gwalior Circle No. 1.

( 2. ) FACTS essential for purposes of this appeal are as under:-

(i) The appellant (plaintiff) has instituted a suit for declaration simpliciter to the effect that the best judgment assessment made by the sales Tax Officer is ultra vires on facts and cause of action laid in the plaint. The defendant has denied the contentions of the plaintiff and has contended that the plaintiff himself has created the situation to compel the Sales Tax Officer to take resort to best judgment assessment. The assessment in question is validly made. The provisions of section 4 of the M. P. Excise Act, are not ultra vires.

(ii) The plaintiff submitted, an application under section 151, Civil procedure Code dated 21-3-1971 for grant of ad-interim relief of temporary injunction restraining the non-applicant from recovering the amount of sales tax till disposal of the suit. This application was filed because notice period had not expired by that time.

(iii) Thereafter by order dated 4-11-1971, the suit was registered as regular civil suit. On behalf of the plaintiff, an application for issuance of ad interim injunction was submitted on 21-3-1971 under section 151, Civil Procedure Code. This application was opposed by the state Government and has been rejected by the impugned order. Hence this appeal.

( 3. ) SHRI A. K. Shrivastava and Shri Balwant Singh appeared on behalf of the plaintiff-appellant and contended that the impugned order is illegal on facts as well so on law. Shri M. N. Pendharkar, panel lawyer for the State argued in support of the impugned order and further contended that after registration of the suit, plaintiff submitted another application under Order 39, rules 1 and 2 read with section 151, Civil Procedure Code on 3-1-1972, for restraining the defendant from recovery dues in question. This application was opposed by the State Government and was dismissed by order dated 17-1-1972. No appeal has been filed against this order. Therefore, the present appeal deserves to be dismissed.

( 4. ) AFTER having heard the learned counsel for the parties, I am of the opinion that the appeal deserves to be dismissed.

( 5. ) AN application for issuance of interim injunction, in proceedings started prior to expiry of notice period prescribed by section 80, Civil Procedure code is made and entertained only by way of stop-gap arrangement. This is what has been held by a Division Bench of this Court in case reported in ram Krishana Prashar v. Chironjilal Vaishya, 1977 JLJ 184. and others, wherein law has been laid down that:-

" (1) Where the period of notice under section 80 of the Code of Civil procedure has not expired, an intending plaintiff can file a substantive application praying for grant of a temporary injunction. Such an application is not one under section 151, Civil Procedure Code but it is necessarily one under the Code of Civil Procedure, wherein inherent powers of the court are invoked for grant of temporary injunction. Such an order will only be operative till the party concerned is able to file a suit and is able to obtain a temporary injunction from the Court in the suit itself.

(2) The Court acting on such an application can grant a temporary injunction having resort to the inherent powers saved by section 151, Civil procedure Code. "

( 6. ) THIS apart, after courting dismissal of the aforesaid injunction application, the plaintiff again moved the trial Court under Order 39, Rules 1 and 2 read with section 151, Civil Procedure Code for issuance of interim injunction. This application was opposed and dismissed by order dated 17-1-1972. The appellant is not able to show that he has preferred appeal against the order dated 17-1-1972. The present appeal, though against an earlier order, deserves to be dismissed as barred by the doctrine of