SUBRAMANIAN AND ORS. Vs. SEETARAMA AIYAR

JUDGEMENT

(1.) THESE are appeals under the Letters Patent against the judgment of Horwill, J., dismissing two civil miscellaneous appeals, Nos. 602 and 603 of 1947. The two civil miscellaneous appeals were filed against two orders of the learned District Judge of Madura dismissing two applications for the issue of an interim injunction restraining the respondent from executing the decree for possession obtained by him in O.S. No. 15 of 1944 on the file of the Subordinate Judge's Court of Madura pending two appeals before him. That suit, namely, O.S. No. 15 of 1944 was a suit for partition to which the husband of the appellant in L.P.A. No. 14 who was the managing member of the joint family at the time and the father of the minor appellants in L.P.A. No. 13, a coparcener of the family, were parties. The suit ended in a compromise decree.

(2.) THE applications were made under Order 39 of the Civil Procedure Code. Obviously, Order 39, Rule 1 has no application to the facts of this case, nor was it contended before us that it had any application. Before the learned District Judge, apparently Rule 2 of Order 39 was also relied on, but he held it would not apply in terms. In the appeals to this Court, the learned Judge held that from a perusal of Order 39, Rule 1 the case would not come within that rule. But evidently it was not argued before him that Order 39, Rule 2 would apply. Before us, it was contended that the case might be brought within Order 39, Rule 2. Reliance was placed on the words, " restraining the defendant from committing - -other injury of any kind." No authority has been cited to us that proceedings in execution of a compromise decree which had not been set aside would amount to committing an injury. It was said that the decree was not binding on the appellants before us, because they were not parties. We are not impressed with this argument. We hold that the respondent cannot be held to be committing any legal injury by executing the decree in O.S. No. 15 of 1944.

(3.) THE appeals fail and are dismissed with costs.