MULLA MD ABDUL Vs. SK AYUB

JUDGEMENT

(1.) The petitioners as plaintiffs instituted O. S. No. 217 of 1986 in the Court of Civil Judge (Jr. Division), Balasore for declaration of their right, title and possession over the disputed land measuring Ac. 0.92 decimals comprising a tank, its embankment and vacant land with trees thereon and for permanent injunction restraining the opp. parties 1 to 7 from interfering with their possession over the disputed land. The petitioners also filed an application being Misc. Case No. 143 of 1986 for temporary injunction. The learned trial Judge by order dated October 14, 1987 granted temporary injunction restraining the opp. parties 1 to 7 from interfering with the petitioners' possession over the disputed land until further orders. The suit, however, came to be dismissed for default on July, 27, 1990. On an application filed under Order 9, Rule 9, C.P.C. the suit was restored to file on December 13, 1991. The petitioners thereafter filed an application before the learned trial Judge seeking police help to implement the order of injunction dated October 14, 1987 but the same was rejected on March 26, 1993. On April 22, 1996 another application was filed by the petitioners before the learned trial Judge praying for an order directing the Officer -in -charge of Soro police station to render police help at the time of catching fish from the disputed tank. The learned trial Judge by order dated May 4, 1996 allowed the said application by directing the Officer -in -charge of Soro police station to ensure compliance of the injunction order dated October 14, 1987 and to render necessary police help to the petitioners at the time of catching and, removing fish from the tank.

(2.) THE opp. parties 1 to 7, being aggrieved by the aforesaid order dated May 4, 1996 filed Civil Revision No. 21 of 1996 before the learned District Judge, Balasore. By the impugned order dated August 31, 1996 (Annexure -2) the learned District Judge allowed the revision holding inter alia, that although the suit was restored by order dated December 13, 1991 the order of injunction passed earlier to the dismissal of the suit did not automatically revive and as such the question of its implementation through police help did not arise. The correctness, legality and propriety of the aforesaid order of the learned District Judge is assailed in this application under Article 227 of the Constitution of India.

(3.) SHRI S. Mishra -2, learned counsel for the petitioners has contended that the learned District Judge committed an error of law in holding that the order of interim injunction does not automatically revive with the restoration of the suit. He has further submitted that the learned District Judge erred in holding such view because he failed to appreciate the distinction between the provisions relating to the order of attachment before judgment under Order 38, Rule 5, C.P.C. and an interim order made under Order 39, C.P.C. The learned counsel has informed us that there is no decision of this Court on the point and has also filed a memo to that effect.