( 1. ) THIS is a Miscellaneous (First) Appeal. The order being passed in this case shall also govern the disposal of the connected Miscellaneous (First) Appeal No. 150 of 1970 (Ghanshyam Das Agrawal and others v. The Union of india and others), as both these appeals involve the same question of law.

( 2. ) THE facts giving rise to the present appeal may be given in some detail in order to understand the point. There was a firm nirbhaya Ram dadu Ram. In this firm Dadu Ram, Nirbhaya Ram and Nathu Ram (one of the sons of Nirbhaya Ram) had one-fourth share each while one Dhani Ram and Purushottam Das (another son of Nirbhaya Ram) had one-sixteenth and three-sixteenth share respectively. Against this firm there was an income-tax liability of Rs. 39,530. 60. In proceedings for the recovery of this amount the tax recovery officer attached a house belonging to the joint family of Nirbhaya Ram and his sons. A different house was attached in each of the two cases. So far as the present appeal (No. 149 of 1970) is concerned an objection was filed by the appellants Ramakant Gupta and Rajendra Kumar Gupta, claiming that this house had come to their share along with their brother nathu Ram Agrawal (Respondent No. 3) on partition in the family, each of them having one-third share in the house. The objection was that since Nathu Ram alone was a partner in the firm, the two-third share belonging to the appellants Ramakant and Rajendra Kumar was not liable to attachment and sale. This objection was not accepted by the tax recovery officer and he by order dated 6th September 1965 directed that the whole house be attached. Against that order regular Civil Suit No. 7-A of 1965 was filed by the appellants in the Court of the Additional District judge, Raigarh. To that suit the Union of India, the State of Madhya Pradesh and Nathu Ram were made defendants. During the pendency of the suit the plaintiffs asked for an injunction under Order 39, rule 1, Civil Procedure Code, restraining the defendants from putting their share of the house to auction. Such an injunction was refused by the Court below by order dated 7th August It 70. Against that order the present appeal has been filed,

( 3. ) THE Court below has not gone into the merits of the case and has not decided upon the advisability of passing the order but has held that Order 39, rule 1, Civil Procedure Code, does not apply to a suit where the plaintiff merely seeks a declaration; and since no property is involved in such a suit no injunction can be granted. Learned Judge of the lower Court has not quoted any authority on the basis of which he has come to that conclusion.

( 4. ) HOWEVER, the learned counsel for the parties have cited before me authorities on both sides. It appears that the Court below was misled into applying the principle laid down by Hon. Bose J. of the Nagpur High Court in fakira Mahadaji v. Rumsukhibai (1947 NLJ 43=air 1946 Nag 428 ). In that case the plaintiffs suit was for declaration of his right to certain lands. The learned Judge observed :

"it will be seen that the suit does not arise out of any previous proceedings. It is an independent suit brought by the plaintiff against Sakhatsingh and Balu for a declaration that the fields in suit belong to the plaintiff and were not liable to sale in execution of sakhatsinghs decree in Civil Suit No. 14 of 1926. The Collector decided to proceed despite the suit and the plaintiff was unable to obtain an order for stay. Accordingly the fields were sold again on the 24th August 1945 and were purchased by certain auction purchasers who were represented. "

In that suit an application was made for staying the confirmation of the sale in favour of the purchasers and the learned Judge was considering the propriety of making a stay order. In this connection the learned Judge observed :

"as this is an application for stay, I am naturally not concerned with the merits. The short question before me is this. A obtained a decree against B