M RAMACHANDRA REDDY Vs. CHALLA JANAKI

JUDGEMENT

(1.) The revision is filed against an order made in I.A. 1834/83 refusing to stay the execution of the decree in O.S.48/84 dated Sept. 22, 1983. The respondent No. 1 herein filed the above suit for a declaration of title to the plaint schedule property and for perpetual injunction restraining the petitioner herein and two others who are the defenders 2 and 3, from interfering with her possession and enjoyment therein. The trial Court decreed the suit, and against the decree an appeal has been filed. An application under Order Rule 5 of the Code of Civil Procedure was filed for suspension of the operation of the decree or too trial Court. It was refused. Thus the present revision petition. It is the contention of the petitioner that in O.S. 10/80 on the file of the Court of the District Munsif at Shadnagar, the first petitioner and his wife, the second defendant in the suit obtained an ad Interim injunction and it is subsisting. Suppressing that fact, the present suit was filed, and therefore, the order of injunction passed by the trial court is illegal. It is also contended that the petitioner and his wife have been in possession and enjoyment of the plaint schedule property that the order of injunction is subject to the appeal, and unless heir possess ion is protected, they would suffer irreparable injury he lower Court has not rightly exercised its discretion under Order 41 Rule 5 of the Code of Civil Procedure and has committed material irregularity in exercise thereof The lower Court apart from holding that the 1st respondent has been is possession and enjoyment of the plaint schedule property, and that order of injunction cannot be suspended, further held that the order for injunction is not is executable decree, and therefore Order 41, Rule 5 has no application. This view of the lower Court is also assailed in this revision.

(2.) Under these circumstances, the first question that arises for consideration is whether an application under Order 41, Rule 5 of the Procedure Coda would lie to seek suspension of the operation of a perpetual injunction granted by the trial Court?

(3.) Therefore, the question is whether a decree of perpetual injunction is an executable decree or not? The lower court assailed that it is not executable and therefore Order 41, Rule 5 (1) does not apply. I am unable to agree with the lower court. Order 21, rule 32 adumbrates that where party against whom a decree for....................for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced.......................for an injunction by his detention in the civil, prison, or by the attachment of his property, or by both. Therefore, a decree for perpetual injunction is clearly an executable decree under Order 21, Rule 32 (t) of the Civil Procedure Code. The decree is clearly an executable decree, and therefore, comes within the sweep of "execution of such decree" couched under Order 41, Rule 5 (1) of the Code. Thus I hold that the appellate court, in an appropriate case, if the facts and circumstances so warrant, may order stay of the execution of such decree for perpetual injunction.