RAM CHAND Vs. MAHESH CHAND GUPTA

JUDGEMENT

(1.) SRI Ram Chandra and Shyam Lal have preferred this second appeal against the judgment and decree dated 12th October 1973 passed by Sri Bhanwar Singh VII Additional District Judge, Agra, dismissing Civil Appeal No. 211 of 1981 and thereby confirming the judgment and decree dated 18th July 1981 passed by Munsif Fatehabad, Agra dismissing the Plaintiff -Appellants' suit No. 204 of 1980 under Order VII Rule 11 of Code of Civil Procedure.

(2.) THIS application in second appeal has been moved for stay of the execution of the decree passed in another Suit No. 1700 of 1973. Proceedings under a decree or order appealed from may be stayed under Rule 5 of Order XLI Code of Civil Procedure But it is not possible to stay the proceedings under a decree or order against which the present appeal has not been preferred. It is, therefore, clear that the execution of the decree passed in Suit No. 1700 of 1973 cannot be stayed under the provisions of Rule 5 Order XLI CPU and the learned Counsel for the Appellant has not pressed fur the stay of the execution proceedings in Suit No. 1700 of 1973 under Rule 5 of Order 41 Code of Civil Procedure.

(3.) PROVISO A to Rule 2 of Order XXXIX Code of Civil Procedure as amended by Uttar Pradesh lays down that no such injunction can be granted where no perpetual injunction could be granted in view of provisions of Section 38 and Section 41 of Specific Relief Act. It is clear that under Section 41 of Specific Relief Act no perpetual injunction could be granted to restrain the Respondents from executing the decree passed in Suit No. 1700 of 1983. So no temporary injunction can be granted under Rule 2 of Order XXXIX. The learned Counsel for the Appellant has urged that he does not claim temporary injunction in this case under Rule 2. His contention is that the Appellants are entitled for a temporary injunction under Rule 1(c) of Order XXXIX which has been added by amendment in the year 1976 and reads as below: