KUNHUKUTTAN NAIR Vs. SUBAKUMARAN

JUDGEMENT

(1.) We think that this appeal against the grant of a temporary injunction has to be allowed on the short ground that the Civil Procedure Code does not authorise the grant of an injunction in the circumstances of the case.

(2.) The suit in which the injunction has been granted was one instituted by the three sons of the manager of a joint Hindu family governed by the principles of Mitakshara law. It was for partition of their three-fourths share in the joint family property. The suit was filed on 16-10-1957, but the entire property had already been sold on 16-9-1957 in execution of a mortgage decree against the father in his capacity as manager of the family. The sale was confirmed on 20-10-1957. The suit was on the footing that the decree and the sale did not bind the plaintiffs since the mortgage debt incurred by their father was an avyavaharika debt and the decree holder and auction purchaser were made parties to the suit being impleaded as defendants 3 and 5 respectively. On 18-10-1957 the plaintiffs came forward with the present application stated to be under O.39 R.1, C. P. C. praying for a temporary injunction to restrain the 5th defendant auction purchaser from taking delivery of the property. This application having been allowed, the 5th defendant has come up on appeal.

(3.) Now, as we have said, the application is under O.39 R.1 C. P. C , and in granting it the court below has purported to act under that rule. It is clear that clause (b) of that rule cannot apply, and so far as clause (a) is concerned it is not the case that the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit. That the effect of the delivery will be to deprive the plaintiffs of such possession as they have through their father is not to waste, damage or alienate the property, and the only question then is whether the property is in danger of being wrongfully sold in execution of a decree. But the sale in execution had already taken place when the application was made, and it had even been confirmed before the application was ordered. There was therefore nothing left for the court to restrain by a temporary injunction, and we are not impressed with the argument which seems to have found favour with a single Judge of the Lahore High Court in Inavat Ullah v. Gurdit Singh, AIR 1930 Lahore 950, on which decision the court below has based its order, that delivery of possession is part of the sale and that the sale cannot be held as complete until possession is delivered. Delivery of possession is no more an ingredient of a court sale than of a private sale. The sale is complete and title passes as soon as the bid is accepted, subject no doubt to its being determined by cancellation of the sale under the provisions of R.89, 90 and 91 of O.21 of the C. P. C., and the sale becomes absolute when it is confirmed under R.92 of that order.