1984 Supreme(MP) 158

Gulab Gupta, J.
Devendra Kumar v. Chironjilal.
C. R. No. 762 of 1983 (G); Decided on 27-2-1984.

Headnote:(1) Civil P. C., 1908 -- S. 151 and O. 39, Rr. 1 and 2 -- section 151 -- not a substitute for order 39, Rr. 1 and 2 -- provisions under Order 39, Rr. 7 and 2 clearly applicable -- remedy of injunction cannot be granted under section 757.

        (2) Decree -- execution of -- cannot he stayed by passing vague order in inappropriate proceedings.

        (3) Execution - final decree -- execution cannot be stayed by passing vague order in inappropriate proceedings.

        (4) Jurisdiction -- not challenged before concerned Court -- High Court refused to entertain objection.

        (5) Civil P. C., 1908 -- S. 115 -- revision under -- justice between parties done by appellate Court -- High Court refused to entertain point of jurisdiction raised for the first time.

        It appears that there is a decree in: favour of decree-holder/N. A. No. 1 which is sought to be executed by handing-over possession of the property in possession of the applicants. Instead of contesting the decree in appropriating proceedings, the applicants filed the present suit for declaration that the decree in the earlier suit was a nullity. In this suit, instead of making an application under order 39 Rule 1 and 2, CPC they made an application under Sec. 151. CPC praying for somewhat vague order that the status quo in respect of the suit property should be maintained. The trial Court granted the order of maintaining the status quo. In an appeal against this order, the lower appellate Court considered the matter on merits and came to the conclusion that such an injunction cannot be granted and vacated the order of status-quo, against which the present revision has been filed.

        Held : The main submission of the Learned counsel is that the order of the Trial Court being an order under Sec. 151, CPC, no appeal against the same lay before the lower appellate Court and hence the impugned order should be held to be without jurisdiction. I do not consider it proper to decide this matter in view of the facts and circumstances of the case. It is not denied that the effect or status quo order would be to stop the execution of a decree which has become final. Its effect would also be to stay the execution of the warrant which has been issued against the plaintiffs/applicants. It cannot be disputed that in case the applicants were aggrieved by the order of the executing Court issuing warrant against them, they should have challenged the same in an appropriate proceedings. The fact that issue of warrant against them has not been challenged, is sufficient to establish that a legally executable decree remains against them. Such a legally executable decree cannot be stated by passing a vague order of maintaining status-quo. This is what was sought to be done by the applicants before the lower Court by filing this application under Sec. 151, CPC. It is not disputed that the trial Court was competent to grant an injunction under Order 39 Rules 1 and 2, CPC for protecting possession of the applicant, in case it was so satisfied. It is not understood as to why this normal procedure was not followed in the instant case. Sec. 151 CPC cannot be treated to be a substitute for Order 39 Rules 1 and 2 CPC. In this case, apparently, the trial Court rested Sec. 151, CPC as a provision entitling it to grant injunction in favour of the applicant, even though no application under order 39 Rules 1 and 2, CPC was moved. Such in order cannot be treated to be a legal order. If an illegal order has been set aside by the lower appellate Court, it cannot be said that the impugned order of the lower Appellate Court does any injustice. This apart, it may be observed that this objection to the jurisdiction of the lower appellate Court was not taken before it and is being taken for the first time in this revision. It cannot be disputed that this Court would be entitled to refuse exercise of its discretionary power in such a matter particularly when it aims doing justice between the parties. This is a case of that type. Since the order promotes justice, no case for interference in this revision is made out. Revision dismissed.