BALBHADDAR Vs. BALLA

JUDGEMENT

(1.) Mr. Ghatak has argued this appeal with considerable skill, but I am afraid that the authority is against him. The plaintiff sued for a declaration that a certain mortgage executed by his judgment-debtor Balla in favour of Ram Ghulam was fictitious, ostensible, invalid and ineffectual according to law; that Balla had no right to transfer the property, and that Ram Ghulam had no right to accept the transfer. The plaintiff Balbhaddar sued Balla in the Court of Small Causes at Cawnpore on a simple money bond and at the same time applied under Order 39, Rule 1, Civil P.C., for an injunction to prevent him from transferring his house. Notices were issued and both the application for injunction and the suit came up for hearing on the same date. The injunction was granted and the suit decreed. Both happened on the same day, 18 August 1926, and next day on 19 August Balla made the transfer to Ram Ghulam which is brought into question in this suit. It was argued in the suit that the injunction having been issued the transfer was null and void. This argument is against authority. It was held by this Court as far back as 1887 in Chunni Kuar V/s. Dwarka Prasad [1887] A.W.N. 297, that a temporary injunction came to an end with the passing of the decree. In that case the argument was advanced that a temporary injunction may be issued by Court until further orders, so it may extend beyond the date of the decree. This Court explained that until further orders provided for an alteration in the order prior to the passing of the decree that is, the injunction may extend either up to the passing of the decree or to a time short of that until further orders of the Court. The injunction, therefore, became inoperative on the passing of the decree. I find from a note in one of the annotated editions that the same view was taken by the Madras High Court in 1924. The case is said to have been reported in Ayisa Umma V/s. K. Abdulla A.I.R. 1924 Mad. 178, of which a copy is not in this Court.

(2.) Going a little further the existence of an injunction does not render void an alienation made in contravention of the injunction. It was held by this Court in 1887 in Delhi and London Bank, Limited V/s. Ram Narain [1887] 9 All. 497, that the principles of S. 23, Contract Act, do not apply to such an alienation. This view was affirmed by a Bench of this Court in 1903 in Manohar Das V/s. Ram Autar Pande [1903] 25 All. 431. The same view was taken by the Madras High Court in 1918 in Pnzhakkal Edom V/s. Mahadeva Pattar on the authority of this Court.

(3.) Through some inadvertence no penalty appears to be provided in Order 39 for the breach of an injunction. It seems likely that the provisions of Rule 2 (3) Order 39 were intended to be applied to a breach of an injunction under Rule 1 also, but as Clause (3) is included under Rule 2 it would follow that the provisions of that clause will not apply to Rule 1. The Registrar shall be requested to bring this matter to the notice of the Rules Committee so that Clause (3), Rule 2, may be turned into a separate rule applicable both to breaches of injunctions issued under Rule 1 and under Rule 2.