TMI Blog1967 (3) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ions filed before the Dist. Magistrate and also before the High Court were missed in the year 1959. In the meanwhile, the plaintiff filed a suit in C.S 82/1/53-54 for declaration of his adoption and title to the suit schedule properties against the defendants. On 1-6-1953, an interim injunction was issued against the defendants. The suit was dismissed for default and was restored on 26-9-1953. Again, the suit was dismissed for default on 19-7-1955. The restoration application filed on 17-8-1955 was also dismissed for default on 19-10-1955. The case came up in revision to the High Court and was allowed on 15-11-1960 and the case was remanded. On 20-12-1960, the case was again dismissed for default. On 21-12-1960 restoration application was filed. During that period, an application under Order 39, Rr. 1 and 2 was rejected on 25-1-1961 on the ground that the court had no inherent powers to grant the relief prayed for. 4. Against that order, C.R.P No. 232/61 was filed in which an order of temporary injunction was obtained. In the said revision petition, I.A No. II was filed for vacation of the interim order obtained. The Court passed an order on 29-3-1961 directing the 2nd defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irdly, the order of restoration passed by the Civil Judge, Gulbarga, suffers from material irregularity in the exercise of his jurisdiction. 10. Sri V. Krishna Murthy, learned Advocate for the plaintiff contended that the Munsiff had no jurisdiction to enforce the order dated 29-3-1961 of this Court after C.R.P 232/61 was finally disposed of on 11-9-1962. He nextly contended that the order of this court dated 29-3-1961 expressed a cumulative condition and the Munsiff was wrong in restoring possession of the suit properties without security. Thirdly, he contended that when the suit was restored, the order granting temporary injunction on 1-6-1953 automatically got revived and therefore the Munsiff was wrong in passing an order to the effect that the second defendant is entitled to possession. 11. On the other hand Sri Jagirdar learned Advocate for the respondents contended that the order passed by the Munsiff should not be taken as an order interpreting the interim order of the High Court, but it should be taken as an order passed under Order 39, Rule 4, as per the direction given by this court in the order passed on C.R.P 232/61 dated 11-9-1962. He secondly contended that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the C.R.P No. 232/61 cannot operate after the disposal of the said petition. Sri Jagirdar, learned Advocate for the 2nd respondents was unable to meet the first contention of Sri V. Krishna Murthy. What he submitted was that the order passed by the Munsiff should not be taken as an order passed in respect of the interim order passed by the High Court, but it should be taken as an order passed under Order 39, Rules 1 and 2. I am unable to accept the argument advanced by Sri Jagirdar. It is not possible to construe the impugned order as an order passed under Order 39, Rules 1 and 2. Therefore, I agree with the contention of Sri V. Krishna Murthy that the Munsiff had no jurisdiction to seek to enforce the interim order dated 29-3-1961 passed by this court after C.R.P 232/1961 was disposed of on 11-9-1962. Therefore, the said order is not sustainable in law and the same is liable to be set aside. 15. The next question is whether the restoration of the suit in O.S 82/1 of 1953-1954 by the Civil Judge, has revived the ancillary orders passed before the dismissal for default of the suit. Answer to this question depends upon the terms in which the order of dismissal for default is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon a decision in Raj Chander Gupta v. Ramesh Kishore, AIR 1965 All 546 wherein it is held as follows: There does not seem to be any reasonable basis for making a distinction between the dismissal of suit for default and a dismissal of suit on merits. If the plaintiff succeeds in getting the suit restored in one case and the dismissal of suit is set aside on appeal in the other, all that happens is that the suit becomes alive. It cannot be disputed that once a suit is dismissed either for default or on merits, it ceases to exist in the eye of law and therefore, any ancillary orders passed in the suit would automatically come to an end and cease to operate. 18. With great respect to the learned Judge who has laid down the law as above, I am unable to agree with that view in view of the two decisions of Madras and Patna High Courts quoted above. As can be seen from the above judgment, the learned single Judge who rendered the decision in Allahabad case appears to have noticed the two decisions which I have referred to above. The Allahabad decision, in my opinion, does not lay down the correct principle of law. 19. Sri Jagirdar invited my attention to a Full Bench decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to temporary injunctions and interlocutory orders. In para 10 of the above quoted decision, their Lordships have observed as follows: Moreover, it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate Court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate Court which has also ample powers to grant an order of attachment before judgment under the provisions of Section 107(2), Civil P.C 24. Sri Jagirdar strongly relied upon those observations. In my opinion, these observations are only obiter. This question was not specifically before the Full Bench for decision. The question that was before the Full Bench for decision was whether an attachment before judgment which ceased with the dismissal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is vitiated by a material irregularity. 27. In the above case relied upon by Sri Shetty, the court restoring the suit had to rely upon affidavits which did not disclose sufficient material to justify the setting aside the order of dismissal. But the facts of the present case are entirely different. The plaintiff in the instant case has examined himself and P.Ws 2 and 3 in support of his case and some Exhibits relating to the total number of passengers carried by the bus which the plaintiff missed are also produced in the case. The appellate Court has come to the conclusion that the evidence led on behalf of the plaintiff was trustworthy and the Court below ought to have considered the reason put forth by the plaintiff for his non-appearance in the court. Further, the appellate court has found that the plaintiff had shown sufficient cause for his non-appearance on the date when the suit was called for hearing. On question of fact, thus, the appellate Court has come to the above conclusion. Shri V. Krishna Murthy strongly relied upon a decision in Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336 wherein it is held as follows: It is not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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