E MANAGAMMA Vs. A MUNISWAMY NAIDU

JUDGEMENT

(1.) C.R.P. No. 1934 of 1978 is referred to a Division Bench by narasinga Rao, J., on the question whether a defendant -respondent, in an appeal under O. 43 R. 1 (r) of civil P.c. against an order of exparte injunction made by the lower Court under O. 39, R.1 C.P.C against him. The answer to such a question so long as it remains unencumbered by the weight of judicial pronouncements can be expected reasonably to be simple and straight and in the affiramative order 39, C.P.C. deals with the subject of granting injunctions by the civil courts O. 39 R. 1 provides for granting of ex parte injunction without hearing the party sought to be affected thereby. The party which was injuncted by the passing of such an ex parte order is given a right to ask the Court that granted such an order to discharge vary or set aside that ex parte order of injunction on an application being made for that purpose, the Court after hearing both the parties makes a final order under R. 4 of O. 39, C.P.C. enumerates various orders from which an appeal lies Rule 1 (r) of O. 43 states that an appeal lies from among other orders under O. 39 from an order made under R. 1 of O. 39 as well as from an order made under R. 4 of O. 39 o. 43 R. 1 (r) reads thus:- "O. 43, R. 1 ; Appeals from orders:-

(2.) But Mr. Subramanyam, the learned counsel for the petitioner, argued that in case we are not prepared to follow the above decision of the madras High Court, we should, acting in accordance with the rule laid down by a Full Bench of our High Court in subbarayudu v. State 1955 ALT (Cri) 53: (AIR 1955 Andh pra 87), refer this matter to a Full Bench. The learned counsel for the petitioner argued that according to subbarayudu's case, the above said madras decision in Abdul Shukoor v. Umachander ( AIR 1976 Mad 350) (supra) binds us. In our opinion, subbarayudu's case does not make a decision of the madras High Court rendered some twenty years after our High Court was established binding on us. This argument of the learned counsel should, therefore, be rejected. It is no doubt true that a Full Bench of our High Court held in the above mentioned subbarayudu's case that the decisions rendered by the madras High Court prior to the formation of the Andhra High Court at Guntur, are binding on the Andhra High Court. The decision in the subbarayudu's case would have been helpful to the petitioner only if shukkor's case was rendered before 1954. As the above mentioned judgment of the madras high Court in shukoor's case (supra) was of the year 1976. Its binding authority clearly does not extend to the territories of Andhra state and does not bind this Court even under the above reasoning accepted in subbarayudu's case (supra). But Mr. Subramanyam says, that notwithstanding the fact that the above madras decision in shukkor's case was one made after the year 1954. Its ruling still binds us, because of the rolling back effect on us it makes of its declaration as to the existence of a long standing practice in the madras High Court denying appeals against order made under O. 39 1 C.P.C Mr. Subrahmanyam argued that this must be taken as a declaration of law as existing prior to 1954 and we should accordingly either accept that law of the Madras High Court or differ from it and refer this case to a full Bench we think this argument of the learned counsel is not correct. Under the rule in Subbarayudu's case (AIR 1955 Andh pra 87) (Fb), it only the law laid down by the madras High Court that is given the binding force of a precedent. Every Act of practice of the madras High Court is not sanctified by the subbarayudu's decision into a binding precedent. Shukkoor's case (AIR 1976 Mad 350) does not refer even to one decision where O. 43 r.1 (r) C.P.C was interpreted by the Madras High Court earlier to 1954 to the effect that no appeal against an ex parte order of injunction passed under O. 39 r. 1 lies under O. 43, R. 1 (r). Nor did Sri Subrahmanyam cite to us even one decision of the Madras High Court prior to 1954 taking the view that shukoor's case took. Shukoor's case merely refers to a practice of the Madras High Court this is not laying down law. It is merely stating a fact. But such a declaration of fact is not made binding on us by subbarayudu's case. We refuse to follow the observations made in Shukoor's Judgment, because we are of the opinion that those observations run directly counter tot he above mentioned statutory provisions of the Civil P.C.

(3.) Further we are of the Opinion that subbarayudu's case (AIR 1955 Andh pra 87) failed to consider the right question. The full bench judgment at page 55 (of ALT (Cri) : (at p. 89 of AIR) of the report summarised the arguments advanced before it by the learned counsel appearing for the opposite parties in following words:-