DEOCHANDRA PRASAD SINGH Vs. AMALENDU MUKHERJI

JUDGEMENT

(1.) This application by the plaintiff is directed against an order of the Additional District Judge of Monghyr affirming an order of the Munsif second Court there, refusing to grant a temporary injunction.

(2.) The relevant facts are these. There is a house belonging to the opposite party who gave it on rent, according to their case, to one Ramkishun, while according to the case of the petitioner jointly to the petitioner and the said Ramkishun. It appears that the petitioner and the said Ramkishun are partners in a business. In the year 1950 they entered into an agreement with the opposite party for the purchase of the house. There were some slight variations in the agreement. According to the petitioner as the oppo-site party did not, in pursuance of the above agreement, execute a sale deed in favour of the petitioner and Ramkishun, they instituted a suit for specific performance of the agreement. That suit was dismissed and they have preferred a first appeal in this Court which is still pending. In the meantime the opposite party started a proceeding for eviction against Ramkishun only and succeeded in getting an order of eviction passed in their favour. An appeal taken by Ramkishun against the order of the Controller failed. In execution of the eviction order, which has the force of a civil court decree, the opposite party made both the petitioner as well as the said Ramkishun as judgment-debtors against whom they sought execution. The petitioner made an application under Order 21, Rule 53 of the Code of Civil Procedure alleging that he not being the judgment-debtor, the execution as against him for delivery of possession of the house could not be maintained and he claimed to be in possession of the house in his own right. This application, however, was dismissed as having been filed at a very late stage. An application in revision was filed in this Court against the order of dismissal but that application was also dismissed by this Court. Thereafter the petitioner filed a title suit under the provision of Order 21, Rule 63 of the Code of Civil Procedure for declaration of his right as being a tenant of the house and for injunction restraining the opposite party from dispossessing the petitioner from the house in execution of the decree for eviction passed against Ramkishun. He also made an application for a temporary injunction restraining the opposite party from dispossessing him pending the hearing of the suit. That application was rejected by the court of first instance, and its order was affirmed by the lower appellate court, as stated above. Hence, the present civil revision application has been filed in this Court. It may be noted that subsequently after the petitioner became unsuccessful in the claim case his name was expunged from the execution petition and the execution proceeded only against Ramkishun who filed an application that he has vacated the house.

(3.) Mr. Lalnarain Sinha appearing for the petitioner has put forward two contentions, namely, (1) that if the petitioner was a co-tenant with Ramkishun, the eviction order could not be binding on him 93 it was not passed against him and (2) that if he is not a tenant and is only a trespasser, then he could not be evicted without there being a decree for possession against him. On behalf of the opposite party Mr. Varma has raised an objection that no injunction could be granted under any of the provisions of the Code of Civil Procedure and, therefore, this application should be rejected.