GELHEI MALLICK Vs. DIBAKAR MALLICK

JUDGEMENT

(1.) Hearned Mr. P.C. Acharya, learned Counsel for the Petitioners and Mr. B.K. Nayak, learned Counsel for the opposite parties.

(2.) A suit was filed by the Petitioners father for declaration of right, title and interest over Aco. 0.29 decimals of land appertaining to sabik Plot No. 105 under sabik Khata No. 16 in Mouza Aliha in the erstwhile district of Cuttack, which corresponds to hal Plot No. 94 under hal Khata No. 6 in Mouza - Aliha. The suit was dismissed for default. Subsequently an application under Order 9, Rule 9 Code of Civil Procedure has been filed for restoration of the suit, which has been registered as I.A. No. 364 of 2008 and is pending disposal before the learned Civil Judge (Senior Division), Kendrapara. The Defendants, who were earlier set ex-parte in the suit, appeared in the said interim application and filed an application for grant of an interim injunction. The application was allowed directing maintenance of status quo against the Plaintiffs, who were the Petitioners in the application under Order 9, Rule 9 Code of Civil Procedure Against the said order, they filed F.A.O. No. 60 of 2009 before the learned Additional District Judge, Kendrapara. The said appeal having been dismissed and the order of status quo confirmed, the Petitioners being aggrieved have preferred the present writ application.

(3.) The moot question which arises for a decision in this case is as to whether an application for grant of interim injunction can be maintained in an application filed under Order 9, Rule 9 Code of Civil Procedure for restoration of the suit before the suit is restored. Order 39, Rules 1 deals with grant of temporary injunction, which reads as follows: