DANIEL Vs. CHELLAPPAN

JUDGEMENT

(1.) Revision petitioner (plaintiff) filed the suit under O.21 R.58(5) C.P.C. claiming that the property is not liable to be attached in O.S.133 of 1982. He filed I.A. 954 of 1990 before the Munsiffs Court for injunction. The Munsiff dismissed the petition. C.M.A. 36 of 1990 filed by the revision petitioner was dismissed by the District Judge.

(2.) First defendant had obtained a decree in O.S.133 of 1982 against defendants 2 and 3. In execution of the decree 27 cents of property was attached on 16-7-1987. Case of the revision petitioner is that he purchased the property by sale deed dated 17-12-1984 from the second defendant in O.S. 133 of 1982. The claim petition filed by the revision petitioner as E. A. 10 of 1988 was dismissed for default. Restoration application E. A 263 of 1989 was also dismissed. He filed C.R.P. 2416 of 1989. That attempt was also unsuccessful. It is thereafter that the present suit was filed.

(3.) The question that arises for determination is as to whether any injunction can be granted against execution of the decree in O.S.133 of 1982 in the present suit. The suit has been filed under O.21 R.58(5) of the C.P.C. Under R.5 when a claim or an objection is preferred and the Court under the proviso to sub-rule (1) refused to entertain it the party against whom such order made can institute a suit to establish his right to the property. Regarding the maintainability of the suit there is no dispute. Whether in such a suit an order of injunction can be granted is the moot point for consideration. R.5 clearly states that subject to the result of the suit order refusing to entertain the claim or objection shall be conclusive. That makes the position sufficiently clear that in a suit filed under O.21 R.58(5) an interim injunction cannot be granted restraining the enforcement of the decree in the suit where the attachment has been made. Merely because the revision petitioner has filed O.S. 133 of 1982 the conclusiveness of the order dismissing the claim is not in any way lost. So long as the conclusiveness of the order remains the revision petitioner is not entitled to any order of injunction.