SHEO NANDAN PRASAD Vs. SHEO PARSAN PATHAK

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a judgment of Dhavle, J., affirming the concurrent decrees of the first two Courts in a second appeal. The facts found are briefly these: The plaintiffs are the mortgagees of a share of which defendant 1 is the proprietor. The plaintiffs were not recorded in the Collector's register until some time after 1931. In 1934 defendant 1 instituted suits against a number of tenants to recover rent for the years 1337 to 1340 F. These suits were resisted by the tenant defendants on the ground that defendant 1 was not entitled to the rents and that the rent had been paid to the plaintiffs. This plea did not succeed as the plaintiffs were not recorded, in register D. After the original decrees of the trial Court the plaintiffs got themselves recorded, but they were not allowed to prove this fact during the later stages of the suit. Defendant 1, however, brought a suit (Suit No. 170 of 1934) for getting the mutation order in the rehandar's favour set aside, but this suit was dismissed in 1936 and the defendant's appeal from the dismissal was also dismissed in June 1937. In November 1936, the plaintiffs brought the present suit for a declaration that the rehan deed standing in favour of their ancestor still subsisted, and so long as the rehan was not redeemed, defendant 1 had no right to realise rent from the tenants and that the decrees which had been passed in the rent suits were not binding upon them. They also prayed for an injunction to restrain defendant 1 from realising the decretal amounts, and to restrain the defendants second party who were the tenants against whom the decrees had been obtained from making any paym&it to defendant 1.

(2.) The first two Courts decreed the plaintiffs suit and granted an injunction permanently restraining defendant 1 from realizing rent under the decrees made in the rent suits to which reference has already been made. The Munsif also directed that "a note to that effect will be made in the relevant register of the Munsif, Second Court, Arrah." Defendant 1 thereupon preferred a second appeal, but this appeal was dismissed by Dhavle, J. who upheld the decrees of the Courts below. Defendant 1 has preferred this appeal under the Letters Patent. The only question which has been raised in this appeal is that on the facts of the case no injunction can be granted in favour of the plaintiffs. The learned advocate for the appellant in support of his argument referred us to the provisions of Section 56, Clause (a) and (b), Specific Belief Act. Clause (a) provides that "an injunction cannot be granted to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings." Again Clause (b) provides that "an injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought." It is contended, in the first place, that the injunction which has been granted is virtually an injunction staying a judicial proceeding, and it is also contended that the injunction is wholly unwarranted, firstly, because there is no likelihood of multiplicity of proceedings, and, secondly because the Munsif, in whose Court the execution proceedings are pending, is not subordinate to the Munsif who has tried the present suit. It was pointed out that the present suit has been tried by the Munsif in charge of the third Court at Arrah, whereas the execution proceedings are pending in the Court of the Munsif in charge of the second Court.

(3.) Now, it appears to me that the whole argument is based upon a misconception. The plaint in the suit as well as the decree against which this appeal is directed clearly show that the plaintiff never asked for an injunction for staying any judicial proceeding but simply asked for an injunction against defendant 1 so as to restrain him from executing his decrees. The decree further shows that an injunction has been granted as against defendant 1 only. In my opinion therefore Clause (a) and (b) of Section 56 have no application to the present case. In my view, the injunction, which has been granted in this case could have been granted under Section 54, Specific Belief Act. Section 54 provides that "subject to the other provisions contained in, or referred to by, this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.