MADHO RAO NARAYANRAO GHATATE Vs. YADO TUKARAM DHOTE

JUDGEMENT

(1.) THIS is an appeal from an order refusing to set aside an injunction granted ex parte. The injunction was granted on 26th August 1935, and the application to set it aside was made on 18th January 1936. The application was dismissed and the appeal is from that dismissal. An objection was taken by the respondents to this appeal that no appeal lay from an order dismissing such an application it being urged that the only provision making orders under Order 39 appealable is Order 43, Rule 1(r) which declares appealable orders made under Order 39, Rules 1, 2, 4 or 10. It is conceded that the appropriate provision, if there be one under which this order could be passed, is Rule 4 of Order 39 which reads as follows: Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order.

(2.) IT is said that this is not an order discharging but an order refusing to discharge. But we think that the correct way of looking at it is that where an order for an injunction has been passed an application may be made under Order 39, Rule 4 to discharge that order. If that application succeeds clearly appeal lies because it results in an order being discharged. Also if the application is dismissed, still the order, in our opinion, is made under Order 39, Rule 4 which attracts Order 43, Rule 1(r) which makes that order appealable. In our opinion therefore the preliminary objection fails. That leaves us with the merits. This is a case in which a mortgagee sued his mortgagor on a mortgage, got a decree for sale, brought the mortgaged property to sale and purchased it by leave in Court auction. He had joined in that suit on that mortgage not only the mortgagor but the present plaintiff who is the mortgagor's minor son. The son got dismissed from that mortgage suit claiming paramount title and is now suing for a declaration as to his title. The son is and at all material times has been in possession. He sought by an ex parte application an injunction restraining the confirmation of the sale. At the time the application was made the local amendment to Order 39, Rule 1 was in operation and undoubtedly enabled him to obtain such an injunction. That local amendment "has since been deleted and at the moment it would be a question whether confirmation could be stayed by injunction, and that point was taken before us; but, in our opinion, that does not arise as the repeal of that local amendment was not, in our opinion, retrospective and this order was made while it was in full force.

(3.) WE have considered, in view of the recent instructions contained in Chap. 12, Rule 283 of the Rules and Orders (Civil) issued in 1938, whether this is not a case in which we should take from counsel what is in England the usual undertaking in default of which ex parte injunctions are not granted. The theory is that interlocutory injunctions are very readily granted on the side that is asking for them undertaking to pay to the person damnified by the granting of the injunction any damages that that person may sustain. It is necessary to take an undertaking from either counsel or the party to that effect because the powers of the Court to make an order as to damages are exceedingly limited. If the undertaking is not forthcoming the injunction should not be granted ex parte save in very rare circumstances. If it is given the injunction should readily be granted. The wording of the order in Seton's Judgments and Orders (Edn. 7),. Vol. I, Chap. 31, page 507, is as follows: The plaintiff by his counsel, undertaking to abide by any order which this Court may make as to damages, in case this Court shall be of opinion, that the defendants shall have sustained any, by reason of this order, which the plaintiff ought to pay, [if ex parte and if ordered, and also undertaking to accept short notice of motion to discharge this order or the injunction hereby granted], this Court doth, etc.