NATHMAL Vs. MAKHANLAL

JUDGEMENT

(1.) This appeal is brought on be-half of the plaintiff Natlimal Agarwala against an order of the Subordinate Judge of Sasaram refusing to grant a temporary injunction restraining the defendant 1st party from taking delivery of possession of certain properties in an execution case.

(2.) It appears that Nathmal Agarwala had preferred an objection under Order 21, Rule 58, Civil P. C. to the attachment of the properties in question in. the case. These properties consisted of plots Nos. 842 and 843 situated in Mohania and the properties included also a rice, oil and flour mill and a Gola. Nathmal Agarwala objected to the attachment on the ground that on 5-3-1949, he had purchased the plots with the standing structures and the Gola and the machinery of the mill for a consideration of Rs. 60,000 from judgment-debtors. Nagarmal Agarwala Jagdish Prasad Agarwala and Arjun Das Agarwala. It was alleged by Nathmal Agarwala that he was in exclusive possession of the properties and that they were not liable to be sold in execution of the decree obtained against Nagarmal Agarwala and the other two. judgment-debtors. The application under Order 21, Rule 58 was dismissed by the Subordinate Judge on the ground that the judgment-debtors were in possession on their own account. There was a further finding that the alleged sale of 5-3-1949, was a sham transaction. Aggrieved by the order of the Subordinate Judge the judgment-debtors preferred an application in revision to the High Court but the application was dismissed by a Bench of this Court on 20-8-1952. Thereafter Nathmal Agarwala instituted a suit under Order 21, Rule 63 asking for a declaration that the properties in question were his properties and were not liable to attachment and sale in execution of the decree obtained by the defendant 1st party against the defendants 2nd party. The plaintiff also filed an application for issue of a temporary injunction against defendant 1st party restraining him from taking delivery of possession of the properties in the execution case. This application was dismissed by the learned Subordinate Judge on 11-9-1952.

(3.) The important question to be determined in. this appeal is whether the plaintiff can be granted an order of temporary injunction under the provisions of Order 39, Rule 1, which states that the Court may grant temporary injunction "if in any suit it is proved by affidavit or otherwise that (a) any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree". A proviso was added to this rule on 8-10-1937. The proviso states as follows : "Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 Specific Relief Act (Act 1 of 1877). Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the Court executing the decree". On behalf of the respondents Mr. G. C. Mukherji stressed the argument that in view of the second proviso of the amendment the plaintiff is not entitled to the grant of an injunction restraining the respondent from taking delivery, of possession. It was pointed out by the learned counsel that in the execution case the plaintiff had preferred an objection under Order 21, Rule 58 but the application was dismissed by the Subordinate Judge on the ground that the judgment-debtors were in possession of the properties on their own behalf and that there was prima facie evidence to suggest that the transaction of sale between the plaintiff and the judgment-debtors entered into on 5-3-1949 was a sham transaction. On behalf of the appellant the learned Advocate-General submitted that the second proviso of the amendment enacted by the Patna High Court will not operate as a bar in this case. It was contended that the second proviso would apply in a case where the plaintiff prays for injunction to restrain delivery of possession and not in a case where the plaintiff asks the Court for grant not of a temporary injunction but "such other order" for the purpose of staying or preventing alienation, sale, removal or disposition, of the property as the Court thinks fit. To put it differently, the learned Advocate-General attempted to draw a distinction between a temporary injunction to restrain a particular act and "such other order'' which may be made by the Court for the purpose of staying or preventing waste, damage, alienation or sale of the property. The question depends upon proper construction of Order 39, Rule 1, which states--"Where in any suit it is proved by affidavit or otherwise -- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, ..... the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wast-ing, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit .....". The learned Advocate-General argued that the second proviso would apply to a case of, what he called, an injunction proper, that is, an injunction issued to a Court to stay proceeding in execution. It was said that when a Court issues an order to a party restraining him from taking delivery of possession in an execution case, the said order was not injunction in the technical sense but was an order in the nature of art injunction. In my opinion this argument is not correct. It is true that the second proviso to Order 39, Rule 1 refers only to a temporary injunction and does not expressly mention an order in the nature of an injunction, but the whole purpose of the proviso would be defeated if the argument of the learned Advocate-General is accepted to be correct. In such a case it would, be open to a party who has failed in a claim case under Order 21, Rule 58 to institute a suit under Order 21, Rule 63 and to apply to the Court for injunction, or. to use the language of the learned Advocate-General, an order in the nature of injunction for restraining the decree-holder from applying to the Court for sale of the attached properties or from taking possession of the properties sold by the Court in the execution case. It would be only necessary for the plaintiff in such a case to label his application as an application for an order in the nature of an injunction and not for an injunction proper and to ask the Court to grant an order restraining the decree-holder from applying for sale or taking possession of the properties. In my opinion the argument of the learned Advocate-General is not correct and the amendment enacted by the Patna High Court must be construed to mean not merely that injunction but also an order in the nature of an injunction to restrain delivery of possession shall not be granted except in a case where the plaintiff cannot lawfully and could not have lawfully preferred a claim to the property before the Court executing the decree. Any other interpretation would nullify the effect of enacting the second proviso in the amendment. There are further considerations which support the view I have taken. For instance, Order 39, Rule 3, states that "the Court shall in all cases except ..... direct notice of the application for the same to be given to the opposite party". Order 39, Rule 4 states that any order for an injunction may be discharged or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order. Order 39, Rule 5 provides that an injunction directed to a corporation, is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain. It is evident that in Rules 3, 4 and 5 the word "injunction" is used but it is manifest that the word "injunction" in these Rules must be construed to mean not merely an injunction but also an order in the nature of an injunction which the Court is competent to make under Order 39, Rule 1. Any other interpretation v.'ould nullify the effect of Rules 3, 4, 5 and would be against all sound principle of interpretation. For these reasons I think that the argument of the learned Advocate-General on this point cannot be accepted as valid. On the contrary, the second proviso of Order 39, Rule 1 would be a bar to the application for injunction filed in the present case on behalf of the plaintiff.