RADHAMOHAN SUNDARA MOHAPATRA Vs. SURA DEI

JUDGEMENT

(1.) THE petitioner is the auction purchaser of some landed property sold in am execution case as belonging to opposite party no. 2. Opposite party No. 1 had filed a claim case in. the said execution proceeding claiming the same lands in her own right as having been purchased from opposite party No. 2 prior to the attachment the claim petition of the opposite party No. 1 having then summarily rejected by the executing court, she filed a suit for declaration of her right and for other reliefs, including permanent injunction restraining the auction purchaser from taking possession. She also prayed for a temporary in junction restraining the petitioner from taking delivery of possession through executing Court. An ad interim injunction was granted, and notice being issued to the petitioner he raised an objection against the order of interim injunction on the ground that proper court-fee had not been paid in the suit. The trial Court accepted the petitioners contention that proper court-fee had not been paid, and so passed an order asking the plaintiff to pay the deficit court-fee by a particular date and directing that the ad interim order of injunction would become absolute if the court fee was paid by that date, and would stand vacated if the same was not paid. no COURT-FEE was actually paid by the date fixed for the purpose. Against the order of the trial court, the plaintiff came in appeal, and the learned District Judge held that the continuance or termination of the order of injunction should not have been made dependent on the payment of court-fee, which was a completely distinct matter, and made the order of injunction absolute. It is against this order that the present petition in revision has been filed.

(2.) THE learned counsel for the petitioner conceded that payment of proper court-fee had no bearing on the injunction matter, and so he did not seek to challenge the propriety of the appellate Court's order from that aspect. His contention however, was that Order 39, Rule 1 Civil Procedure Code, as amended by the patna High Court took away the power of the Court in such at case to grant the temporary injunction. The second proviso to Order 39, Rule 1 (as amended by the patna High Court) is,

(3.) THE reply of Mr. Sahu for opposite party no. 1 is that the said amendment of the Patna High Court to Order 39, Rule 1 Civil Procedure Code is ultra vires, since it does not come within the rule making power of the High Court, as provided by sections 122 and 128 Civil Procedure Code. Mr. Sahu's contention is that the rule nuking power of the High Court as provided in Section 122 Civil Procedure Code is intended to regulate the procedure of the High Court or the subordinate Court, and it is not intended to take away any substantive right of the party, which could only be done by legislature. According to him, since a party is shut out from seeking any relief in interim injunction by the said proviso, the said proviso is not strictly a rule regulating the procedure of the Court. In support of his contention, Mr. Sahu sought to rely on a Full Bench decision of the Rangoon High Court reported in AIR 1937 Rang 419 Chettyar firm v. Central bank of India Ltd. That case related to a matter not covered by Order 39 Rule 1, but one covered by Order 21, Rule 90 Civil Procedure Code. The Rangoon High court had added a proviso to Order 21, Rule 90 providing that no application to set aside a sale shall be admitted unless the applicant deposited with his application the amount mentioned in the sale warrant or an amount equal to the amount realised by the sale, whichever is less. Their Lordships of the Rangoon high Court observed.