SHYAM ROY Vs. GRINDLAYS BANK LTD

JUDGEMENT

(1.) In this application under Section 115 of the CPC, the plaintiff has challenged the judgment of the learned Additional District Judge, Fourth Court, Alipore, dated January 26, 1983, dismissing and vacating the order passed in the miscellaneous appeal oh July 21, 1082, for preservation of the status quo.

(2.) The plaintiff instituted the suit on June 17, 1982, for a declaration that the auction sale held on March 21, 1980 and confirmed oil May 6, 1980, in Money Execution Case No. 2 of 1978, in the Court of the First Subordinate Judge, Alipore, in respect of the suit property was null and void. The plaintiff also prayed for permanent injunction restraining, the defendants from transferring, assigning, encumbering and/or changing the nature and character of the suit property and front disturbing the enjoyment and possession of the plaintiff in respect of the suit property and from disconnecting electric supply, water supply, etc. The plaintiff also prayed for permanent injunction restraining the defendants from giving effect to the auction sale and to act on it in any form and from proceeding with Money Execution Case No. 3 of 1980, of the Court of the First Subordinate Judge at Alipore, and proceeding with the suit for recovery of possession against the plaintiff in respect of the suit property by defendant No. 2 in the Court of the learned Second Munsif, Alipore, being Title Suit No. 513 of 1981.

(3.) The plaintiff filed an application for temporary injunction. The learned munsif by order dated June 17, 1982, issued a notice upon the defendants to show cause why the prayer should not be granted. He, however, refused the plaintiff's prayer for ad interim injunction. Being aggrieved, the plaintiff preferred an appeal, being Miscellaneous Appeal No. 417 of 1982, before the learned District Judge, 24-Parganas. The plaintiff, filed an application under Order 39, Rules 1 and 2, CPC, before the learned District Judge, 24-Parganas, praying for temporary injunction. The learned judge directed the respondents to maintain the said property in status quo. Thereafter, by the impugned judgment, the appeal was dismissed and the order was vacated. Mr. Mihirlal Bhattacharya, learned advocate appearing in support of the rule, argued that having regard to the circumstances of the case, the plaintiff was entitled to ad interim injunction as he had a prima facie case fit enough to come to trial and in such circumstances the status quo of the property should have been maintained. Tax recovery proceedings against the petitioner had been initiated, prior to the auction sale and, as such in view of Rule 16 of Schedule II to the I.T. Act, 1961, the civil court had no jurisdiction to issue any process against the suit property in execution of a decree for payment of money. The auction sale was thus void and as such the plaintiff's right to the property remained intact and he was entitled to retain possession of the same. In support of his argument, the learned advocate for the petitioner has referred to the cases of (1) Sriniwas Pandit v. S. Jagjeet Singh Sawhney; (2) Inayat Hussain v. Union of India [1980] 122 ITR 227 (Bom) and (3) Debabrata Mukherjee v. Kalyan Kumar Roy [1981] 1 CLJ 339.