RAJAN SHARMA Vs. JAGDISH PURBEY

JUDGEMENT

(1.) This revision petition is for interference by this Court with the impugned order dated 26-7-1980 passed by the Munsif, first court, Darbhanga, in title suit No. 141 of 1979. By the impugned order the learned court below, on application under Section 151 of the Civil P. C. (hereinafter referred to as the (Code)), stayed the formal proceeding of the Title Partition Suit No. 52 of 1958, in which the final decree proceeding regarding fixation of patbandi was going on in accordance with the terms of the preliminary decree passed therein on appeal in Title Appeal No. 57/61/43 of 1962 against which the second appeal in this High Court also stood dismissed for default.

(2.) The grievance of the petitioner is that such a course, as adopted by the learned court below, is in effect circumvention of law and purports to do a thing indirectly which it could not do directly. From a perusal of the contents of the revision application, it is celar that in order to achieve the same said prayer as the one achieved in the impugned order, the opposite party had preferred an application for temporary injunction under Order 39 Rule 1 of the Code for restraining temporarily first party petitioner from proceeding with the action for preparation of final decree in the Title Suit No. 52 of 1958 which was rejected by the same said Court holding that although the ingredients for grant of temporary injunction were available in favour of the plaintiff of Title Suit No. 141 of 1979 but owing to the legal difficulties the same could not be entertained, inasmuch as, a party could not be restrained by an injunction from proceeding with another suit. To me it appears curious that the court below assumed an advisory role in observing in the same said injunction --refusal order that the stay of the proceeding for a final decree could be granted if the plaintiff of Title Suit No. 141 of 1979 filed a petition in that behalf either in the suit or in the partition suit No. 52 of 1958. It is quite apparent that inspired by the said observation of the Court, the plaintiff of Title Suit No. 141 of 1979 preferred this application under Section 151 of the Code in the suit for the stay of the proceeding in Partition Suit No. 52 of 1958 and the court granted the said prayer against which the present revision application has been filed.

(3.) Sri S. P. Shrivastava. counsel for the opposite party, has contended that in view of the proviso inserted in Section 115 of the Code by 1976 amendment, this Court is under fetters in interfering with the order impugned. In my opinion this contention has no substance, inasmuch as, proviso (b) to Sub-section (1) of Section 115 of the Code does provide for interference where the order under revision, if allowed to stand, would occasion failure of justice I have already indicated that the order impugned is aimed at and calculated to circumvent the law by achieving an end indirectly which it could not have done directly and this alone warrants interference. Thus on consideration of the points raised by the respective parties I find and hold that the order is patently illegal as it seeks to achieve things indirectly which could not be done directly. The order impugned, if allowed to stand, would necessarily occasion a failure of justice and hence must be set aside. The application is, therefore, allowed and the order impugned is hereby, set aside but without costs