AYYAMPERUMAL NADAR Vs. MUTHUSWAMI PILLAI

JUDGEMENT

(1.) The petitioners here are defendants in O. S. No. 626 of 1925 on the file of the Court of the District Munsif of Thirumangalam and the respondent is plaintiff in that suit. Against this respondent the petitioners hold a small cause decree in a suit (S. C. S. No. 799 of 22) on the file of the Court of the Subordinate Judge of Madura. In the former suit, the respondent obtained from the District Munsif an injunction restraining the petitioners from executing the small cause decree. The petitioners appealed against the grant of this injunction to the District Court, which held that no appeal lay. They have now presented this revision petition, contending that the learned District Judge erred in so dismissing their appeal.

(2.) Confining ourselves first to the express provisions of the Civil P. C. the power to grant a temporary injunction is derived from Section 94, which permits of this course, "if it is so prescribed." Prescribed by the rules passed under the Code, and the rules relating to temporary injunctions are to be found in Order 39. It is quite clear, and indeed it has scarcely been contended, that these rules cannot be made applicable to a case such as the present, so that the District Judge was right in his conclusion that no appeal would lie. If the District Munsif's order is to be supported at all, it must be by force of the inherent power of a Court, to grant an injunction in such circumstances. Whether or not, in face of the express provisions of the Code, such a power exists, has been considered by Phillips, J., in Varadacharyulu v. Narasimhacharyulu A. I. R. 1926 Mad. 258 and following the principles accepted by the Full Bench in Neelavani V/s. Narayana Reddi [1920] 43 Mad. 91 he has answered the question in the negative. I respectfully agree with and propose to follow that decision. Thus the order of the District Munsif was without jurisdiction. The course which the petitioners should have adopted was to apply to this Court for the revision of that order instead of appealing against it to the District Court. They now ask me to treat the present petition as such an application and it appears to me that the terms of Section 115 are wide enough to enable me so to do, and that the circumstances are such as to call for this Court's interference.

(3.) I accordingly set aside the orders passed by the District Judge and the District Munsif and dismiss I. A. No. 882 of 25 on the file of the latter Court. The petitioners will receive their costs from the respondent here and in the District Munsif's Court.