ABDULLAH KHAN Vs. BANKE LAL

JUDGEMENT

(1.) This is an application under Order XXXIX, Rule 1, of the Code of Civil Procedure for an injunction restraining the respondent from proceeding with the sale of certain property which he has caused to be attached in execution of a decree. The decree was obtained by him against one Sheo Narain and in execution of it he caused certain immovable property to be attached. The plaintiffs applicants preferred an objection to the attachment on the allegation that the property had been sold to them by the judgment-debtor Sheo Narain, and that it was not liable to sale in execution of the decree obtained by the respondent. Their objection having been overruled they instituted a suit under Section 283 of Act No. XIV of 1882 for a declaration of their title to the property. The suit was dismissed by the Court of first instance and from the decree of that Court a first appeal has been preferred to this Court which is now pending, The applicants have presented this application for an ad interim injunction for stay of the sale of the property in suit pending the decision of the appeal.

(2.) Dr. Satish Chandra Banerji, in showing cause against the application, contended that the application was not maintainable under Order XXXIX, Rule 1 inasmuch as property which is about to be sold in execution of a decree cannot be said to be in danger of "being wrongfully sold in execution of a decree" within the meaning of the rule. In support of his contention he relied on the decision of this Court in the matter of the petition of In re Chando Bibi 26 A. 311 : A.W.N. (1904) 37 which was followed in Meghraj Singh V/s. Lala Mal 4 A.L.J. 342 (note). As the Bench before which the application came for hearing had doubts as to the correctness of the view taken in those cases, the application had been referred for disposal to this Bench. With great respect to the learned Judges, who decided the case referred to, I am of opinion that the application is maintainable tinder Order XXXIX, Rule 1, which corresponds to Section 492 of the old Code of Civil Procedure. That section provides that where in any suit it is proved by affidavit or otherwise 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. It is clear from the language of the section that the legislature contemplated that property might be in danger of being wrongfully sold in execution of a decree. The words "wrongfully sold in execution of a decree" were added in the Code of Civil Procedure of 1877, (Act X. of 1877). They did not exist in Section 92 of Act VIII of 1859 and is manifest that when the words "wrongfully sold in execution of a decree" were added by the Legislature, it was clearly intended that an injunction might be granted when property, which the claimant Craimed to be his, was in danger of being sold in execution of a decree against another person, or even against himself. In certain circumstances it might be in danger of being wrongfully sold in execution of a decree against the plaintiff himself. For instance, if the plaintiff has instituted a suit for a declaration that the decree obtained against him was obtained by fraud, the property would be in danger of being wrongfully sold in execution of such a decree. Other instances are given in Dr. Satish Chandra Banerji's elaborate work on Specific Relief at page 741. This view, I have expressed above is supported by the Calcutta High Court in Brojendra Kunwar Rai Chaudhari V/s. Rup Lull Dass 12 C. 515 and also by the decision of Oldfield, J., in Gang a Nand V/s. Balgovind Das A.W.N. (1884) 349 which was followed in Kirpa Dayal V/s. Rani Kishore 10 A. 80.

(3.) As regards the merits of the case, I am of opinion that the case is one in which a temporary injunction ought to be granted as the question whether the property was under attachment at the date of the sale in favour of the applicants is one which should be determined in the appeal now pending. I would, therefore, allow the application as prayed. Stanley, C.J.