IRANAGOUDA BASANAGOUDA BIRADAR Vs. BASANAGOUDA VEERANAGOUDA BIRADAR

JUDGEMENT

(1.) the defendants in suit o.s. No. 275 of 1989 have preferred this revision petition. The plaintiff filed a suit o.s. No. 275 of 1989 for permanent injunction. He also filed i.a. No. I for temporary injunction. Although the defendants were represented, they took various adjournments to file objections to i.a. No. I. On 5-3-1990 since the defendants failed to file objections, the learned munsiff allowed i.a. No. I and granted temporary injunction. Against that the defendants had preferred an appeal m.a. No. 17 of 1990. The appeal m.a. No. 17 of 1990 was also dismissed. Aggrieved by the dismissal of the appeal by the appellate court, the defendants have preferred this revision petition.

(2.) the short ground on which the appeal was dismissed was that the defendants did not prefer a petition to vacate the interim injunction before the trial court itself as required under order 39, Rule 4 of C.P.C. order 39, Rule 4 of C.P.C. states that any order of injunction may be discharged or varied or set aside by the court on an application made thereto by any party dissatisfied with the Order, and the appeal was to be preferred under order 43, Rule 1(r) of C.P.C. this court has taken the view that unless there is an application made by the aggrieved party to vacate the order or modify the order of temporary injunction granted by the trial court, no appeal shall lie.

(3.) the learned counsel for the defendant relied on a judgment in mis. Parijatha and another v Kamalaksha Nayak and others , wherein this court has held that no appeal lies against an ex parte order of injunction under order 39, rules 1 and 2 of C.P.C. and the remedy for the aggrieved person even if he is a stranger is to move the trial court of the first instance. A similar view has been taken in the case of vokkaligara sangha, vishweswara puram, Bangalore and another v s. Pradeep, where this court has held that order in the nature of mandatory injunction will not lose its character though the order is passed by invoking order 39, rules 1 and 2 of C.P.C. and therefore, the only remedy to the appellants is to approach the jurisdictional court and file an application for setting aside the order under order 39, Rule 4. Without invoking such a procedure, if any appeal is filed, it is not maintainable. The learned counsel for the defendant also relied on in the case of Gopal Ahuja and another v Sanman Distributors private limited, Bangalore and others.