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K.P.M. Aboobucker vs K. Kunhamoo And Ors.

1957 (12) TMI 32 - MADRAS HIGH COURT

Dated:- 20-12-1957 - O P. Rajagopalan JUDGMENT P. Rajagopalan, 1. This is an appeal against the order of the Additional City Civil Judge, Madras, passed on an application preferred under Order 39, Rule 1, Civil Procedure Code, in O.S. No. 1119 of 1955, refusing to grant the interim injunction asked for by the appellant, the petitioner in the lower Court, against the contesting respondent, the decree-holder in C.S. No. 228 of 1954. It should be convenient to refer to the decree-holder in C.S. No. .....

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mber. Abdulla's brother Ummerkutti claimed that the business in timber that Abdulla carried on was a "partnership concern, in which the brothers were partners. In the arrangements made subsequent to the death of Abdulla, his minor children were represented by their mother as their guardian. It may not be necessary to set out all the details of this arrangement or their validity. They constitute the subject-matter of O.S. No. 1119 of 1955, which still remains to be disposed of. After 194 .....

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and some other assets of Abdulla were allotted to the share of defendants 1 and 2. One of the daughters of Abdulla filed a suit for partition, C.S. No. 271 of 1952, on the Original Side of this Court, which was subsequently transferred to the City Civil Court and numbered as O.S. No. 1119 of 1955. The appellant who was impleaded as defendant 5 supported the claim of the plaintiff in that suit. There the plea was that none of the children of Abdulla who were among his heirs was bound by the arra .....

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nsel for the appellant relied to support his plea, that there was enough to show prima facie that the appellant has rights, though they have yet to be adjudicated upon, in the properties of Abdulla.. 3. The first and second defendants, it should be remembered, carried on the business after 1941. They were indebted to the respondent on the dealings between them. The respondent supplied timber for their trade even as he had been supplying material during the lifetime of Abdulla. Defendants 1 and. .....

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gh Court for suing defendants 1 and 2 who had been appointed by that Court as Receivers in the partition suit. That leaye, however, was obtained without notice to the parties in the partition suit other than defendants 1 and 2. 4. Though the respondent knew of the pendency of the suit for partition which had been instituted in 1952, itself, he did not have the heirs of Abdulla impleaded in his suit on the mortgage. The appellant was thus not a party to the decree in C.S. No. 228 of 1954 Similarl .....

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er, 1957. The appellant applied to the learned Additional Judge on 27th September 1957, for the issue of an interim injunction to restrain the respondent from bringing the property to sale. The application itself was in proceedings in O.S. No. 1119 of 1955, in which it should be remembered the respondent was not a party defendant. The learned Additional City Civil Judge dismissed that application on 2nd November, 1957, principally on the ground that the decree in C.S. No. 228 of 1954, in executi .....

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sale was held on 11th December, 1957, the date on which the appeal first came on for hearing before us. It was represented to us that the first item was sold, and that in the absence of bidders the second item was not sold. I have set out these facts only to complete the narrative, though it may have no bearing on the determination of the main question in controversy between the parties. 7. What was argued at length before us was whether the Court has jurisdiction during the pendency of the suit .....

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included within it persons who were not themselves parties to the suit in which the interim injunction was sought. The learned Counsel submitted that unlike Rule 1(b) and Rule 2(1), Rule 1(a) of Order 39 did not in express terms restrict the issue of an injunction only against the defendant in the action. 8. In neither Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85, nor Sankara Aiyar v. Muhammad Gani Rowther (1935) 70 M.L.J. 257 : I.L.R. 59 Mad. 744, in which a Division Bench approved of .....

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u v. Narasimhacharyulu (1925) 23 L.W. 85, the injunction sought was against the defendant in that suit, to restrain him from executing a decree obtained by him against the plaintiff's father. Phillips, J., observed: It is now contended that such an injunction will come under Order 39, either rule I, or Rule 2. It certainly cannot come within the language of Rule 1, for there is no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated .....

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that the decree is illegal, for, if the decree is legal, the defendant has every right to execute it and in doing so he cannot be said to commit any injury. The learned Judge did not refer to the other class of cases for which also Order 39, rule I (a) provided, where the property in dispute in a suit is in danger of being wrongfully sold in execution of a decree. Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85 cannot therefore be really looked upon as having decided what constitutes dang .....

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en as the decision on the issue in the mortgage suit. In the partition suit the mortgage was declared binding on the shares of the respondents and a decree by consent was accordingly passed in the mortgage suit against their shares. There was no appeal against the decree in the mortgage suit but an appeal was presented to the High Court against the decree in the partition suit. The respondents applied to the High Court under Order 39, Rule 1, of the Code of Civil Procedure, for an injunction res .....

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a case where the property of somebody not a party to the decree is in danger of being sold and that person comes forward with a claim that it is his property and cannot be sold. The case before us is something like that which the learned Chief Justice was not called upon to consider in Sankara Ayyar v. Mohammad Gani Rowther (1935) 70 M.L.J. 257 : I.L.R. 59 Mad. 744. 12. In Sankara Ayyar v. Muhammad Gani Rowther (1935) 70 M.L.J. 257 : I.L.R. 59 Mad. 744, the learned Chief Justice observed, at pag .....

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decree remains unreversed, it is a good decree and all steps in execution of it are perfectly legal. Whether it was really a case of jurisdiction or one of discretion, the scope of both of which was governed by Order 39, Rule 1(a), and whether the proposition laid down by the learned Chief Justice in the first sentence of the passage I have extracted above is not too wide as it stands, if taken out of its context, may have to be considered should occasion arise for it. However, if I may say so .....

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relief, especially so when the person against whom the interim injunction is sought is not a party to the suit, and against whom no relief could be granted in the suit itself. 13. Since in my opinion the disposal of the appeal before us can be rested on a fairly narrow basis, I do not consider it necessary to refer to the other cases cited during the arguments before us. My attention was not drawn to any reported case where a person successfully claimed an injunction against one who was himself .....

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d been wrongfully obtained. He realised that there was no allegation in the plaint in O.S. No. 1119 of 1955 that the respondent hed committed any wrong in obtaining the decree in C.S. No. 228 of 1954. In fact, there was no reference at all to the mortgage or the decree in the plaint in O.S. No. 1119 of 1955- I shall assume for the present that the mortgage decree itself was not wrongfully obtained, but that the execution of that decree would be wrongful, in the sense that it would affect adverse .....

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nce to the mortgage effected in favour of the respondent in 1950 by defendants 1 and 2. That is still the position even after Rajagopala Ayyangar, J., pointed out in the course of his judgment in C.S. No. 228 of 1954: In the written statement...it is stated that the decree here should make it clear that in the event of C.S. No. 271 of 1952 (O.S. No. 1119 of 1955) succeeding the liability for the suit claim should be shared by all the other heirs who would get an interest in the firm....The liabi .....

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n in the judgment to clarify the position. Whether the decree in the mortgage suit is one that would not bind the shares, if any, of those other than defendants 1 and 2 in the suit properties, is not, as I understand it, one of the issues that has been raised for determination in the partition suit, independent of the question, whether the determination of such an issue in that suit would bind the respondent who was not a party to that suit. Therefore, no question could arise in the main suit it .....

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