1986 Supreme(MP) 375

IN THE HIGH COURT OF MADHYA PRADESH
Gulab C. Gupta, J.
Bajranglal Saraogi – Petitioner
Versus
Smt. Gyarsi Devi – Respondent
M. A. No. 299 of 1985 (J)
Decided On : 11-11-1986

Headnote:(1) Civil Procedure Code, 1908 – S. 96, 151 and O. 43, R. 1 – order passed under section 151 – no appeal under S. 96 or under O. 43, R. 1 lies.

       (2) Civil Procedure Code, 1908 – S. 115 – revisional powers under – can be exercised even without written application to correct illegalities.

       (3) Transfer of Property Act, 1882 – S. 122 & 123 – oral gift – has no legal effect.

       (4) Civil Procedure Code, 1908 – O.39, R. 1 and 2 & S. 151 – injunction against execution of decree passed by highest Court – requires serious consideration – prima facie title not established – injuction cannot be granted.

       (5) Civil Procedure Code, 1908 – O.39, R. 1 and 2 & section 151 – injunction under – property in possession of tenants – loss of money equivalent of rent – loss can never be accepted as irreparable.

        Short Note

       1. Learned counsel for both the respondents have vehemently challenged the jurisdiction of this Court to entertain and decide this appeal. Their objection is that since the impugned order has been passed under Section 151 of the Code of Civil Procedure, no appeal against the same lies under Order 43, rule 1 (r) of the Code. Learned Counsel for the appellant, however, submitted that the application filed by the respondent No.1 seeking injunction was an application under Order 39, rules 1 and 2 read with section 151 of the Code. The appellant bad objected to grant of injunction under order 39, rules 1 and 2 which objection according to the learned counsel, must be deemed to have been accepted by the trial Court and that is why, according to him, power under section 151 of the Code has been exercised.

       Held: There can hardly be any dispute about the legal proposition that an order under Section 151 is not appeasable either under Section 96 or under Order 43, Rule 1 of the Code. That, however, does not mean that this Court has no power to deal with such an order if it is prima facie illegal. Revisional power of this Court under Section 115 of the Code clothe it with enough authority to decide and set – aside an illegal order. Under the circumstances, illegality, if there be any, would be set aside while exercising powers under Section 115 CPC. Shri S.P. Sinha, learned counsel for the judgment debtor, however, submitted that such a course is not open to this Court in the absence of a written application from the applicant. He has, of course, taken this objection in his enthusiasm to get out of the decree, which has been passed against him. But his enthusiasm alone is not enough. Learned counsel has not been able to cite any authority to support this proposition. Procedural laws are intended to facilitate justice and not to obstruct it. Any procedure which creates hinderance in dispensing justice is not acceptable to this Court. Under the circumstances, this Court would not decline to do justice only because an application in this behalf bas not been filed.

       2. But can this order be challenged u/s 115 CPC ? The order operates not only during proceedings under Order 9, Rule 9 but also during the pendency of the suite, in case the suit is ultimately restored. Such an order cannot, by any stretch of imagination be passed under Section 151 CPC as any temporary injunction during the pendency of the suit, bas to be granted under Order 39, Rules 1 and 2 of the Code. Faced with this situation, learned counsel Shri S.P. Sinha frankly conceded that the impugned order, in so far as it makes this injunction operative during the pendency of the suit, is wholly illegal and without jurisdiction. If his argument is accepted it will become the burden of this Court to decide it or else it will fail in discharging its function. In such a situation this Court should not hesitate exercising powers u/s 115, CPC, and correct the illegality. The trial Court must be presumed to be aware of its powers under various provisions as apparently it was. If inspite of knowing that injunction during the pendency of the suit can be passed only under Order 39, Rule 1 or 2 of the Code, it passed the injunction order, it must be assumed that at least for injuncting the appellant during the pendency of the case, the trial Court exercised its authority under Order 39, Rules 1 or 2 of the Code. If that be the conclusion, objection about maintainability of the appeal must be held to be devoid of substance. This Court has, therefore, no hesitation in holding that the appeal is maintainable. In any case, the powers of this Court u/s 115 of the Code are available to it to do justice between the parties.

       3. This takes the Court to consideration of the merits of the case. There is no dispute that the matter has been litigated between the appellant and the husband and the father – in – law of the respondent from 1969 to 1983 right from the lower Court upto the Supreme Court. There is enough material on record to hold that in the said litigation, the judgment – debtors did not plead that the property under consideration did not belong to them. Their defense, on the contrary, was that the property was theirs having lost the case even in the highest Court of the land, one would have thought that they will be accepting the decree. There is no indication of such an acceptance. On the contrary, effort of the respondent is to somehow defeat the decree and show that the entire litigation 'Was nothing but an exercise in futility. In such a Situation, the matter would require more serious consideration than an ordinary litigation. The Court will presume the correctness of the decree and will, therefore, require the party challenging the same to establish cogent and acceptable evidence that the decree under execution was wrong and Illegal. It is unfortunate that the learned Judge bas not given any benefit of the earlier litigation to the appellant and has ignored the decree as if it had not been passed. This was not expected of the trial Court. Inspite of it, it will require examination if the respondent No. 1 has been able to make out a prima facie case for grant of temporary injunction. She claims to be the owner of the property having acquired it by way of oral gift in her favour in 1950. It should not require any argument to bold that oral gift of immovable property has no legal effect whatsoever in the eyes of law. That was perhaps the reason why the party executed a gift – deed in 1970 and got the same registered. The registered gift – deed would itself indicate, at least prima facie, that the respondent No.1 was not sure of the past oral gift and her rights based on the same. Now the registered gift of 1970 cannot have any effect as it has been done during the pendency of the suit and after the agreement which is sought to be specifically enforced now. This would, therefore, indicate that her claim to title based on gift is prima facie not acceptable.

       4. Can we give any importance to her title based on possession? It may be assumed that she is recorded as owner in Municipal records. That, however, is not sufficient to either bind the appellant and make the decree invalid. The question one would like to ask to the respondent is that if she had perfected her title by adverse possession why should she have accepted the gift in 1970. Acceptance of gift is, in itself, the acknowledgement that she had no title over the property and the title belonged to the owner. This would at least be prima facie conclusion and establish that her claim to get injunction restraining execution of the decree is based on very weak ground. This Court, therefore, has no hesitation in holding that she has not been able to establish any prima facie case for injuncting the appellant from executing the decree which bas been passed and confirmed by the highest Court of the land.

       5. Even the balance of convenience is not in favour of the respondent No.1. The property admittedly, is in possession of the tenants and she is getting rent. Loss of money equivalent of the rent during the pendency of the suit has never been acceptable as the irreparable loS. Irreparable loss is one which cannot be compensated by award of damages. In a case like the present one, the appellant would only be given symbolic possession of the property and hence tenants would start paying rent to him. There would be an order of restitution in case the respondent No.1 wins the suit. Loss of rent is not sufficient to counter• balance the loss to the appellant by denying him the fruits of the litigation. In this view of the matter also, the order of the trial Court cannot be sustained. Appeal allowed.