MAHANTH RAMKESHWAR DAS Vs. BALDEO SINGH

JUDGEMENT

(1.) This appeal is directed against the order of the District Judge allowing; an appeal against the decision of the Subordinate Judge who had granted an injunction restraining the respondent who opposes this rule from taking delivery of possession. We are not in the least concerned with the facts of the case excepting to state that the respondent had had a decree under which he was entitled to sell and take delivery of possession, which he did. I am informed at the Bar that the interim injunction granted by this Court was granted after delivery of possession had been actually effected. Although that may be so, I think without some very definite knowledge on that point it would be unsafe to decide this case on that question. I take a very strong view of this matter, because it always seems to me that it is impossible to contend that the person who has got a decree and is entitled to execute it, can be said to be wrongfully selling in execution! because some other person has brought an action through which he hopes to succeed in getting possession of the property which is being sold.

(2.) But there seems to be other matters which stand in the way. The plaintiff- petitioner before me refers to the new provision added under Rule 1 of Order 39 to the effect "no such temporary injunction shall be granted if it would contravene the provisions of Section 56, Specific Belief Act." It is said that it does not come into operation until the first day of this year. It may have been necessary to incorporate this rule in order to bring it to the notice of the subordinate Courts, but the Proviso added nothing to the law governed by the Specific Relief Act, and whether the Proviso had been added to Order 39, Rule 1 or not, the position would have been the same.

(3.) This can be seen from the decision of a Full Bench of the Calcutta High Court in Dhuronidhur Sen V/s. Agra Bank Ltd. (1879) 4 Cal. 380, where a point was discussed which in my judgment is relevant in this case. Section 56(b), Specific Relief Act, provides that an injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought.