RAM NARAIN GARG Vs. IMPROVEMENT TRUST

JUDGEMENT

(1.) This is a civil revision by a plaintiff against an order of the learned District Judge of Cawnpore passed on an appeal from the interim injunction of a Munsif. The applicant brought a suit for an injunction in the Court of the Munsif claiming a perpetual injunction restraining the Improvement Trust of Cawnpore from allowing two persons, the other two defendants, to take part in the meeting of the Improvement Trust, on the ground that these persons were not properly elected, and that the plaintiff had been properly re-elected in December 1934, for a term of three years. The Munsif granted a temporary injunction under Order 39, and learned Counsel for the applicant states that this was under Order 39, Rule 2. Pending the disposal of that interim in. junction, the defendants made an appeal to the District Judge, and on 17 February 1936, the District Judge passed the following order: Let notice issue to the opposite party in the meanwhile, and pending the hearing of objection by the opposite party the interim injunction passed by the Munsif is temporarily set aside.

(2.) The points which have been taken in this Court against that order are that no appeal lay to the District Judge against an interim injunction, and that the District Judge had no jurisdiction. Under Order 43, Rule 1, Sub-rule (r), an appeal lies against an order under Rule 2, Order 39. An appeal, therefore, lay to the District Judge. The argument was then made that pending the disposal of thab appeal he could not take any action in regard to the interim injunction. In Order 41, Rule 5 (1) it is provided: An appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so far as the appellate Court may order.

(3.) This gives an appellate Court the power to order stay of proceedings under any decree or order from which an appeal has been filed. In the present case there was an appeal filed from the interim injunction, and therefore the appellate Court had power to order the stay of proceedings. Learned Counsel argues that the expression "stay of proceedings" meant "stay of proceedings in the Court itself" and did not entitle the appellate Court to interfere with the operation of the injunction which had been already issued. We do not consider that to be the interpretation of Order 41, Rule 5, and we think that what the learned District Judge intended to direct was a stay of the operation of the interim injunction. The actual words which he used were perhaps not quite in accordance with the language of the rule, but the expression "is temporarily set aside" undoubtedly meant that there should be a stay of proceedings under that interim injunction. Accordingly therefore as the District Judge had power to make the order now under revision, we consider that there is no ground for this revision. We may note that no proceedings have been taken in the original suit which was brought so long ago as February 1936, and the matter therefore does not appear to be one in which an interim injunction should have issued. We, therefore, dismiss this revision with costs.