RANGALATA SAHOO Vs. RAMA CHANDRA KAR

JUDGEMENT

(1.) This is an appeal under Sec. 43 Rule 1 (r) C.P.C. by the defendant against an order refusing to vary the order of temporary injunction.

(2.) Plaintiff filed a suit for partition and 'aimed relief under section 4 of the Partition Act describing the suit properties to be dwelling house. Plaintiff filed an application for temporary injunction. Such injunction was granted on 23.7.1990 and was made absolute on 20th April, 1990. On 10th May, 1990, defendant filed an application for vacating the order of injunction in exercise of power under Order 39 Rule 4 C.P.C. In the said petition, defendant also sought the Court to exercise the inherent power for the same purpose. In the proceeding, defendant prayed for spot inspection and a person was deputed by the Court. Ultimately, however, trial court held that defendant could have filed an application for setting aside the ex-parte order and as such, relief prayed for cannot be granted under Order 39 Rule 4 C.P.C. Present appeal has been filed by the defendant being aggrieved by such an order.

(3.) Order 39 Rule 4 C.P.C. reads as follows:-