K.NAGABHUSHANA REDDY Vs. REDDIVARI NARASAMMA

JUDGEMENT

(1.) THE appellant filed a suit for partition. It was opposed by defendant 2 (respondent) on the ground that the appellant had no right to the property, because the person from whom the property was obtained, i. e., defendant l, was not the adopted son of defendant 2. The suit was decreed; and the appeal 500 the District Court and the second appeal to this Court by the present respondent were unsuccessful. The respondent thereupon filed a suit in the District Court, Anantapur, which is still pending, for a declaration that the decree passed in the former suit was obtained by fraud and was therefore not binding on her. With the plaint she filed an application for a temporary injunction to restrain the Court from passing a final decree in the partition suit. The District Judge dismissed the application, whereupon the respondent filed C. M. A. no. 599 of 1949 to this Court, which is pending. With the appeal the respondent filed an application for an interim Injunction to have effect during the pendency of C. M. A. no. 599 of 1949. The learned Judge who heard this application refused to consider the main question which arose in the appeal, i. e., whether an injunction should or could have been granted by the District Judge, and passed an order which he thought a just and convenient one pending the disposal of the appeal, by issuing an interim injunction upon terms restraining the appellant from applying for the passing of the final decree. It is against this order of the learned Judge that this Letters Patent Appeal has been filed.

(2.) IT has been argued by the learned advocate for the respondent in support of the order passed that the learned Judge was right in refusing to pass an order which would prejudice the hearing of the Civil Miscellaneous Appeal and that the only consideration is an application for an interim order is what is just and convenient. This argument however overlooks the fact that the learned Judge could pass an order of interim Injunction only under Order 39, Rule 1; and that it was therefore incumbent on him, if he contemplated passing such an order, to consider whether Order 39 applied to the facts of the case. He had no jurisdiction to pass an order of injunction merely because he considered it to be in accordance with equity and good conscience; for, in the exercise of the appellate jurisdiction of this Court over moffussil proceedings he had no inherent power to pass such an order.

(3.) AS already stated, the appellant has obtained a preliminary decree for partition; and he is entitled to continue the proceedings in that suit, to obtain a final decree, and to execute it. The suit does not relate at all to property although possession of suit property by the appellant may result in due course on the passing of a final decree in his favour. There is no question of any property in dispute in the suit being in danger of being wasted, damaged, or alienated, or of being wrongfully sold in execution of a decree. It follows that the learned Judge had no jurisdiction to pass the order he did. It was necessary for him to consider whether Order 39 had any applicability to the facts before him, even though in doing so he would have decided the very question which arose in the Civil Miscellaneous Appeal itself.