GAUMONT KALI PRIVATE LTD Vs. BADRI PRASAD JAISWAL

JUDGEMENT

(1.) This appeal is brought on behalf of the defendant against an order of the 2nd Subordinate Judge of Arrah, dated the 12th November, 1959, in Title Suit No. 30 of 1959, granting a temporary injunction to the plaintiff restraining the defendant from executing a decree in Execution Case No. 16 of 1959.

(2.) It appears that in 1956 there was a hire-purchase agreement with regard to certain machineries for running a cinema between the parties, and the total price of the cinema equipment-was fixed at Rs. 35,129/-, out of which the plaintiff-respondent paid a sum of Rs. 6876/- in certain instalments. On account of the default of the plaintiff, the defendant bought a title suit, namely Title Suit No. 265 of 1958, in the Bombay High Court, to enforce the terms of the hire-purchase agreement. The suit was heard ex parte, and on the 23rd September, 1958, the Bombay High Court granted a decree in favour of the defendant for recovery of possession of the machineries from the plaintiff and also for recovery of the balance of the money due upon the hire-purchase agreement. The decree was executed by the defendant in the Court of the Subordinate Judge of Arrah in Execution Case No. 16 of 1959. Meanwhile the plaintiff brought the present suit, No. 30 of 1959, for a declaration that the decree obtained by the defendant in the Bombay High Court was fraudulent. The plaintiff also prayed for a temporary injunction restraining the defendant from taking possession of the cinema equipment in execution of the decree obtained in the Bombay High Court. The learned 2nd Subordinate Judge of Arrah has allowed the application of the plaintiff and granted a temporary injunction in his favour restraining the defendant from taking possession of the cinema equipment during the pendency of the suit.

(3.) On behalf of the defendant-appellant it was submitted by learned Counsel that the order of temporary injunction granted by the 2nd Subordinate Judge of Arrah cannot be supported by the language of Order 39, Rule 1, or Order 39, Rule 2, of the Code of Civil Procedure. In our opinion this argument 19 well founded and must be accepted is correct. It is obvious in the first place that the property in dispute is not in danger of being wasted, damaged or wrongfully sold in execution of a decree. In the present cess the allegation of the defendant is that the plaintiff has obtained possession of the cinema equipment by virtue of the hire-purchase agreement, and in spite of having made default in payment of instalments has continued to keep possession of the cinema equipment and hag been using it for the benefit of the cinema business. The case of the defendant is that the plaintiff is damaging the cinema equipment and, therefore, the decree for possession given by the Bombay High Court ought to be executed and the defendant should be given possession of the cinema equipment. In our opinion, Order 39, Rule 1, has no application to the present case. It 19 equally obvious that the case does not fall within the language of Order 39, Rule 2 (1), which is in the following terms:-