MAHADEVA BHAT MEHANDALE Vs. VARADA BAI MARATE

JUDGEMENT

(1.) This Civil Petition is filed under Section 151 of the Code of Civil Procedure for setting aside the order dated 6-4-1985 passed by the Munsiff and J.M.F.C., Belthangady, on I.A-II filed in O.S. No. 85/85 pending on his file. The petitioner has also alternatively prayed for issue of a direction to the Court of the Munsiff, Belthangady, to dispose of the objections filed by the petitioner to I.A. II. The office has rightly raised an objection that the Civil Petition filed under Section 151 of the Code of Civil Procedure is not maintainable.

(2.) However, Learned Counsel for the petitioner submits that as per the provisions contained in Rule 3A of Order 39 of the Code of Civil Procedure, the application or objections filed for vacating the order of temporary injunction is required to be disposed of within a period of one month It is further submitted that the petitioner has filed an application for vacating the ex parte order of temporary injunction, but it has not yet been disposed of ; therefore, the petitioner is entitled to seek a direction under Section 151 of the Code of Civil Procedure. It has been time and again pointed out by the Supreme Court that whenever there is a specific remedy provided under the Code of Civil Procedure, the inherent powers of the Court under Section 151 of the Code cannot be exercised. (See : Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR1962 SC 527 , [1962 ]Supp1 SCR450 ; and Ramkarandas Radhavallab v. Bhagawandas Dwarkadas, AIR1965 SC 1144 , (1965 )67 BOMLR779 , [1965 ]2 SCR186 Inspite of this, the Petition is filed under Section 151 of the Code of Civil Procedure. If the petitioner is aggrieved by the order of temporary injunction, there is a remedy open to him to prefer an appeal against that order and if he has filed an application for vacating the same and if the Trial Court has not disposed it of he can request the Court to dispose of the objections or the application. In the event the Trial Court rejects the request, he can approach the Court against such an order under Section 115 of Code of Civil Procedure.

(3.) There is a specific remedy available to the petitioner under the provisions of the Code of Civil Procedure. That being so, the Petition under Section 151 of the Code of Civil Procedure is not maintainable. Accordingly, the Civil Petition is dismissed as not maintainable. However, it is necessary to observe that it is incumbent upon the Trial Court to decide expeditiously, the application or objections filed by the party to the suit to vacate the exparte order of temporary injunction passed in the suit or proceeding. The Court should always keep in view the mandate of Rule 3A of Order 39 of the Code of Civil Procedure and shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted. It is open to the petitioner to move the Trial Court in this regard.