HARBHAGAT KAUR Vs. KIRPAL SINGH

JUDGEMENT

(1.) The facts out of which this petn. for revision arises are these: Execution of a decree for possession of certain immovable property including a house was taken out by Amar Singh & Kirpal Singh against their third brother Partap Singh in the Ct. of Sub. Judge, 1st Class, Barnala. In the meantime the petnr. Mt. Harbhagat Kaur, daughter of Partap Singh, brought a suit for a declaration that she was the rightful owner of the house & that the decree to which she was not a party did not bind her or affect her rights in it. The three brOrs. , who were parties to the prior litigation were impleaded in dsfts. in the suit. This was instituted on 20-9-50 in the Ct. of Sub-Judge 2nd Class, Phul & the same day a prayer for staying the execution proceedings pending in the Ct. of Sub-Judge, Barnala was made. The Ct. purporting to act under Section 151, Code of Civil Procedure issued a temporary injunction restraining the deft, from taking possession of the house in the execution proceedings & ordered the same to be stayed. The two orders were to remain operative till the final decision of the appln. of which notice was to go to the opposite party. On receipt of the stay order, the Sub-Judge of Barnala wrote back to the issuing authority enquiring about the law under which the order was made. The reply to this of the Sub-Judge of Phul was that it was done in exercise of the inherent powers of the Ct. under Section 151, Code of Civil Procedure Some authorities in support of the order were also cited & it was clarified that the order related to the stay of the proceedings only with respect to the house which was the subject-matter of dispute in the suit. The Sub-Judge, Barnala without adverting to the stay order & without making any mention of it, ordered processes for delivery of possession of the house to be issued. The present revision petn is directed against this order of the execution Ct. It may be mentioned here that, as is apparent from a report of the Nazir dated 14-10-50, the possession has already been delivered to the decree-holder.

(2.) It is contended by Shri Jagan Nath for the petnr. that the Sub-Judge, Phul was within his powers to order the stay of the execution proceedings & that the order was legal & justified on the facts of the case. Reliance in support of the argument is placed on Section 151, Code of Civil Procedure & it is urged that a Ct. is competent to make any order that it considers necessary for the ends of justice or to prevent abuse of the process of the Ct. so long as it is not expressly or impliedly prohibited by the Code. It is maintained that since there was nothing in the Code to prohibit it, the Sub-Judge, Phul, was within his powers to make the order which be considered necessary for the ends of justice & for the fair trial of the suit before him. In the alternative, it is contended that even if the Ct. was not fully justified in making the order it was not for the executing Ct. to question its validity or to ignore it The argument is that even if the Sub Judge, Phul had acted wrongly it could not be said that he acted without jurisdiction. The Sub-Judge, Barnala, therefore, ought to have respected &, complied with the order given by a competent Ct. The authorities cited in support of the contention that the Ct. was competent to make the order are Firm Bichacha Ram Babu Ram V. Firm Baldeo Sahai Surajmal, 1940 AIR(All) 241 Jethabhai Versey & Co. V. Amarchand Madhavji & Co., 1924 AIR(Bom) 90 Ma Kyw V. Daw Kye U.,1935 AIR(Rang) 355and Ankalu Reddi V. Chinna Ankalu Reddy, 1944 AIR(Mad) 161 None of them, however, appears to be applicable to the facts of this case, as they do not relate to an order addressed by one Ct. to Anr. of co-ordinate jurisdiction staying proceedings pending in the latter Ct. In 1940 AIR(All) 241 the parties had agreed upon a particular forum to get their disputes settled. Two counter suits relating to the same dispute were instituted in two different Cts. The one that had been agreed upon to be approached, granted an interim injunction restraining the pltf. in the other Ct. to proceed on with his suit. The order was held to be permissible in the exercise of the inherent powers of the Ct. Jethabhai Versey & Co. V. Amarchand Madhavji & Co, 1924 AIR(Bom) 90 does not appear to have any bearing. A suit which was being tried by the H.C. in its original jurisdiction was allowed to be withdrawn & in case it was not withdrawn was ordered to be stayed in the exercise of the inherent powers of the Ct. In Ma Kyaw V. Daw Kye U.,1935 AIR(Rang) 355 two counter suits were going on in the same Ct. between the same parties. One was ordered to be stayed till the decision of the other. In Ankalu Reddi V. Chinna Ankalu Reddi, 1944 AIR(Mad) 161an order to stay the passing of a final decree was made by the appellate Ct. hearing appeal against the dismissal of an appln. for setting aside the ex parte preliminary decree. Kuppuswami Ayyar J. while holding that the order was within the inherent powers of the Ct. observed that these powers could not be made use of in passing an order which would be inconsistent with or opposed to the express provision of any law, or where there is some specific provision for it in the Code. The learned Counsel has expressed his inability to quote any direct authority in support of his contention.

(3.) It cannot be denied that the Code nowhere in so many words empowers a Ct. to make any such order. Section 94(c) authorises the Ct. to grant temporary injunctions in the manner prescribed by the Code itself. Order 39 prescribes the rules governing the issue of injunction. They relate to injunctions restraining individuals to proceed in a particular manner and not to restrain a Ct. from continuing a proceeding pending before it. It is significant to note that Section 94(c) authorises the Ct. issuing the injunction to take action against the person who disobeys the order by attaching & selling his property or by sending him to civil prison. The Ct. will, however, be helpless in enforcing its order by any such proceeding against the Ct. to which the order is issued in case it is not respected. There would thus be no sanction behind the order & no means to get it enforced. The position of the Ct. making the order would be no better if it has acted under Section 151 of the Code & the difficulty of enforcing the Order would in no way be obviated. The argument that an injunction would be valid only if there is some sanction behind it was looked at with approval by a Bench of the Judicial Comrs. in Badri Nath V. Jiwan Chand,1935 AIR(Pesh) 182 & it was therein held that an injunction could not be addressed by one Ct. to Anr. for the simple reason that it would not have a binding force". A D.B. of the Patna H.C. in Kedar Nath V. Mohmood Ali Khan, 1921 AIR(Pat) 92 also took a similar view & observed that "one subordinate Ct. had no right to restrain the action of Anr. subordinate Ct. of co-ordinate jurisdiction by an order or a Robkar". Ram Keshwardas V. Baldeo Singh, 1938 AIR(Pat) 606 Hemandra Lal V. Indo Swiss Trading Co. Ltd., 1945 AIR(Pat) 483 and Gopichand V. Habib Gul,1936 AIR(Pesh) 184 are some of the other cases in which these Cts. followed the view that an injunction, if at all found necessary, can only be issued against an individual prosecuting his case in a Ct. & that a Ct. cannot issue an injunction against Anr. which is not subordinate to it.