NABA KISHORE DAS Vs. UMAKANTA MOHAPATRA

JUDGEMENT

(1.) This is an appeal under O.43, R.1(r) of the Civil P. C. (for short, 'the Code') by defendant Nos. 1 and 2 in O.S. No. 127 of 1980-I of the Court of the Subordinate Judge, Bhadrak.

(2.) The respondents have filed the aforesaid suit against the present appellants and some others praying for permanent injunction in respect of the lands described in schedule 'Ka' of the plaint restraining them from interfering with the possession of the plaintiffs and in the alternative, for partition of the properties in Schedule 'Kha' of the plaint. An application for temporary injunction was filed under the provisions of O.39, Rr.1 and 2 of the Code registered as Misc. Case No. 147 of 1980 and the trial court was pleased to pass an ad interim order of injunction on 9-10-1980 ex parte. Thereafter notice of injunction was issued pursuant to which the present appellants made their appearance in the court and filed their objection against the grant of injunction. The matter was finally heard and the learned Subordinate Judge by his order dt. 25-11-1980 made the ad interim order of injunction absolute. On the very next day, i.e. on 26-11-1980, an application under O.39, R.4 of the Code was filed by the present appellants in the trial court which was registered as Misc. Case No. 195 of 1980. The learned Subordinate Judge who heard the said Misc. Case has dismissed the same on the ground that no case has been made out in the application for his interference under O.39, R.4 of the Code. It is against this order that the present appeal has been filed.

(3.) Mr. Mohanty while arguing this appeal on behalf of the appellants represented that the order passed by this Court in Misc. Appeal No. 234 of 1981 is of relevance and, therefore, the record of that case was brought for reference. That Misc. Appeal appears to have been disposed of on 24-3-1982. It further appears that the said appeal was barred by limitation and was dismissed. I do not find that the order passed in that Misc. Appeal is of any relevance so far as this appeal is concerned.