JUDGMENT - C.S. DHARMADHIKARI, J.:---This appeal from order is filed by the original defendant Suresh, D. Sanghavi against the order passed by the City Civil Court, Bombay dated 6th and 7th February, 1980 in Notice of Motion No. 5498 in S.C. Suit No. 6748 of 1979. The defendant Suresh Sanghavi initially filed a suit before this Court on the original side bearing Suit No. 601 of 1972 against the present respondent Mohasinali H. Merchant for possession of the flat bearing No. B-3, ground floor, 47 B. St. Monica Road, Bandra, Bombay. The said suit was initially hotly contested by the defendant Mohasinali H. Merchant. However, ultimately on 28th of January, 1977 the consent terms were drawn and the consent decree was passed in terms of the consent terms on 5th of November, 1979, which read as under :--- "Decree in terms of prayers (a) and (b) 2) The defendant declares and undertakes to this Honble Court that except himself and his wife Mesuris and children, there are no other persons in the suit flat and that he will not allow any person or persons other than the aforesaid persons to use, occupy and remain in the suit flat until he vacates and hands over, quiet, vacant and peaceful possession of the suit flat to the plaintiff or his representation or to the Court Receiver. 3) The plaintiff do pay to the defendant the sum o Rs. 75,000/- (seventy five thousand) on 31st December, 1979 in the form of the Bank draft drawn in favour of the defendants Counsel Mr. K.T. Khilnani, to be paid over by him to the defendant. Against the plaintiffs paying the said sum as aforesaid the defendant undertakes to this Honble Court to forthwith quiet, vacate and deliver possession of the suit flat to the plaintiff or his representative or to the Court Receiver. 4) The defendant undertakes not to deal with or dispose off the suit flat and to continue to occupy the suit flat as agent of the Court Receiver until he hands over the possession thereof to the plaintiff as aforesaid. 5) On the defendant handing over to the plaintiff the possession of the suit flat as aforesaid, the Court Receiver to stand discharged without passing accounts on the plaintiffs paying all his costs, charges and expenses. 5) On the defendant handing over to the plaintiff the possession of the suit flat as aforesaid, the Court Receiver to stand discharged without passing accounts on the plaintiffs paying all his costs, charges and expenses. 6) All monies so far deposited in the Court by the defendant to be withdrawn by the plaintiff and the same be paid to the plaintiff. 7) No order as to costs". 2. The prayer Clauses (a) and (c) in terms of which the decree was passed by the High Court read as under :--- "(a) That the defendant may be ordered by mandatory injunction of this Honble Court to forthwith remove himself, his servants and agents from the flat bearing No. B-3 on the ground floor of the building known as "Fatima Manor" situate .................................... (c) That the defendant, his servants and agents may be permanently restrained by an order and injunction of this Honble Court from entering upon or remaining in the said flat or any part thereof or from doing any other act or thing so as to prevent disturb or interfere in any manner with the peaceful and quiet possession and enjoyment of the said flat by the plaintiff or the members of his family. It appears from the record that prior to the passing of the said consent decree the High Court appointed had a Court receiver and had issued direction to permit Shri Merchant to use and occupy the said flat and the moveables fittings and furniture during the pendency of the suit. I am informed that the receiver who was appointed in the said suit is still not discharged in view of the terms and conditions incorporated in the consent terms. 3. It appears from the record that thereafter Shri Sanghavi as per Clause (3) of the consent terms offered to pay Rs. 75,000/- to Shri Merchant. However, he refused to accept the same and instead filed the present suit before the City Civil Court challenging the said decree itself. 3. It appears from the record that thereafter Shri Sanghavi as per Clause (3) of the consent terms offered to pay Rs. 75,000/- to Shri Merchant. However, he refused to accept the same and instead filed the present suit before the City Civil Court challenging the said decree itself. In para 9 Shri Merchant challenged the said decree by contending that it is not binding on him nor it is enforceable on the following ground : "(a) The suit filed by the defendant against the plaintiff if the averments made in the plaint, bereft of the gloss, along with the complaint filed by the defendant at the Police Station and the statement filed by the landlord in support of his complaint were to be taken into account, was a suit for adjudication of dispute relating to tenancy rights of and/or to recovery of possession from tenancy and the High Court in view of the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, had no jurisdiction to entertain the said suit. Any decree, therefore, passed in such a suit either on contest or by consent would be a decree passed by a Court without jurisdiction and, therefore, a nullity and unenforceable. (b) That consent decree records a contact between the plaintiff and the defendant which is void on or more of the following grounds :--- (i) The contract in substance and in effect provide for payment by the defendant to the plaintiff of consideration for relinquishment and/or transfer of his tenancy rights in favour of the plaintiff and is, therefore, forbidden by or is of nature that would defeat the provisions of section 19 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 and/or would be opposed to public policy; (ii) The plaintiff by the said contract has contracted out of the protection given to him by the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 and such a contract is of a nature that would defeat the provisions of the said Act and/or would be therefore against public policy". In substance it was his case that the said decree was a nullity and/or unenforceable and/or inexecutable. In substance it was his case that the said decree was a nullity and/or unenforceable and/or inexecutable. Hence he asked for a permanent injunction restraining the defendant Shri Sanghavi, his agents and servants by a perpetually prohibitory injunction from executing and/or enforcing and/or acting upon the consent decree dated 5th November, 1979 passed by this Court in Original Side Suit No. 601 of 1972. 4. The various allegations made in the plaint were denied by the present defendant Shri Sanghavi. Ultimately a Notice of Motion was taken out seeking a temporary injunction by Shri Merchant, whereby he prayed that a temporary injunction pending the hearing and final disposal of the suit should be granted against the defendant Shri Sanghavi from exceeding and/or enforcing and/or acting upon the consent decree referred to therein. The learned Judge of the City Civil Court granted the ad interim injunction in terms of prayer Clause (a) of the Notice of Motion which reads as under :--- "(a) That the defendant, his servants and agents be restrained by a temporary injunction pending the final hearing and disposal of this suit from executing enforcing and/or acting upon the consent decree dated 5th November, 1979 passed in High Court O.O.C.J. Suit No. 601 of 1972, copy whereof is annexed as Exhibit G to the plaint." 5. Subsequently after giving an opportunity to both the sides of being heard by the aforesaid order dated 6th and 7th of February, 1980 the learned Judge of the City Civil Court confirmed the said ad interim injunction with a clarification that it does not in any way prevent the defendant from approaching the High Court for any action on the basis that the plaintiff committed breach of the undertaking given to the High Court. As already observed it is this order which is challenged in this present appeal from order. 6. Shri Paranjape, learned Counsel appearing for the appellant contended before me that the learned Judge of the City Civil Court has committed an error apparent on the face of the record in sitting in appeal over the consent decree passed by the High Court and virtually setting it aside. 6. Shri Paranjape, learned Counsel appearing for the appellant contended before me that the learned Judge of the City Civil Court has committed an error apparent on the face of the record in sitting in appeal over the consent decree passed by the High Court and virtually setting it aside. He also contended that the learned Judge further committed an error in reading the evidence and the allegations made in the written statement in the earlier suit for deciding the question as to whether the plaintiff Shri Merchant had made out a prima facie case for granting a temporary injunction. According to Shri Paranjape all the allegations made or the pleas raised in the earlier suit by Shri Merchant were either expressly or by necessary implication given up and the whole controversy ultimately crystalised in the consent decree passed by the High Court. Hence it was not open for the learned Judge of the City Civil Court to go behind the consent decree at this stage. According to Shri Paranjape even on merits the learned Judge was not right in coming to the conclusion, even prima facie, that the earlier suit was covered by the provisions of the Bombay Rent Act or that Smt. Nargis Banu had never delivered the possession of the suit premises to the original landlord. According to the learned Counsel the learned Judge of the trial Court was also not right in coming to the conclusion that in the consent decree passed by the High Court or in the consent terms there is no declaration by Shri Merchant that he had given up the contentions relating to the tenancy of the suit premises. It was also contended by Shri Paranjape that admittedly the consent decree passed by the High Court will have to be read as an integrated whole and it is not possible to defect one term of it from another. It was also contended by Shri Paranjape that admittedly the consent decree passed by the High Court will have to be read as an integrated whole and it is not possible to defect one term of it from another. Therefore, having come to the conclusion that the reasoning given by him cannot necessarily apply to the undertaking given by the plaintiff to the High Court and that Shri Sanghavi can approach the High Court on the ground of Shri Merchants failure to carry out his undertaking and the injunction granted would not even by implication present Shri Sanghavi from having resort to the High Court in that respect, the learned Judge committed an error in passing an order of temporary injunction, which is wholly inconsistent with the said reasoning, and terms of undertaking. According to Shri Paranjape the plaintiff Shri Merchant has, therefore, not made out any prima facie case grant of injunction nor such an injunction could have been granted under Order 39, Rules 1 or 2 of the Code of Civil Procedure, 1908 in view of the well established principles regarding grant of temporary injunction. It was also contended by Shri Paranjape that the temporary injunction granted by the learned Judge of the City Civil Court is without jurisdiction in view of the provisions of section 41(b) of the Specific Relief Act, 1963 which specifically forbids a subordinate Court from granting any injunction to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. Shri Paranjape has also raised a contention that in view of the provisions of section 47 of the Code of Civil Procedure, 1908 the present suit filed by the plaintiff is not maintainable and on that count also the order passed by the learned Judge of the City Civil Court is without jurisdiction. 7. It was also contended by Shri Paranjape that in view of the fact that the plaintiff Shri Merchant was occupying the suit premises merely as an agent of the receiver, who is in de jure possession of the premises, no temporary injunction should have been granted in favour of the plaintiff, who is in law not in actual possession of the suit premises. 8. 8. Shri Paranjape has also raised a contention that the present suit is also not maintainable in view of provisions of Order 23, Rule 3-A of the Code of Civil Procedure, 1908, as amended, which in clearest terms lays down that no suit shall lie to set aside a decree on the ground that the compromise on the basis of which the decree is passed was not lawful. Therefore, in substance it is the contention of Shri Paranjape that the suit itself is not maintainable. 9. It was further contended by Shri Paranjape that as the Court receiver was in constructive and lawful possession of the property and he was not joined as a party nor the permission was sought from the High Court under Order 40 of the Code of Civil Procedure, the suit filed by Shri Merchant before the City Civil Court was not maintainable and no temporary injunction could have been granted in the said suit. He also contended that from the finding recorded by the learned Judge of the City Civil Court it is quite clear that liberty is given to Shri Sanghavi, the present appellant to approach the High Court to proceed against Shri Merchant for contempt of Court and such an application has already been filed by Shri Sanghavi which is still pending. According to Shri Paranjape the discretionary and equitable jurisdiction conferred upon the Court under Order 39, Rules 1 and 2 should not have been exercised by the City Civil Court in favour of a person who has committed the contempt of the Court, and has not approached the Court with clean hand. 10. On the other hand it is contended by Shri Meghani, learned Counsel appearing for the plaintiff Shri Merchant, that is the case of the present plaintiff that the consent decree passed by the High Court is without jurisdiction and unlawful. According to Shri Meghani it was the case of Shri Merchant in the earlier that Nargis Banu his wife was merely a benamidar and the real tenant was Shri Merchant himself. The alleged story about surrender of the tenancy by Nargis Banu and re-entry of the landlord in the premises and subsequent leasing out the premises to the present defendant Shri Sanghavi is not only false one but is also concocted. The alleged story about surrender of the tenancy by Nargis Banu and re-entry of the landlord in the premises and subsequent leasing out the premises to the present defendant Shri Sanghavi is not only false one but is also concocted. Assuming that because of frictions between the husband and the wife, Smt. Nargis Banu has surrendered the tenancy rights, the said surrender had no meaning because she was not a tenant and all through the possession was with the present plaintiff Shri Merchant. According to Shri Meghani the plea raised by the landlord that he took the possession of the suit flat from Smt. Nargis Banu and then delivered it to Shri Sanghavi is wholly false. Assuming that the allegations made are true, at the most it will confer a right upon the landlord to seek possession of the suit premises under section 13(d) of the Rent Act and unless such a possession is taken by the landlord as per the provisions of the Rent Act, the tenancy rights of the present plaintiff Shri Merchant cannot stand terminated. Hence in substance it is the contention of Shri Meghani that the suit filed before the High Court was based on the relationship of landlord and tenant and in substance question relating to the tenancy was involved in it. In view of this the suit was barred by the provision of section 28 of the Rent Act. The High Court had no jurisdiction to entertain or decide such a suit and hence the consent decree passed in the said suit by the High Court was wholly without jurisdiction and, therefore, a nullity. He also contended that the said consent decree is also not enforceable or executable in view of the provisions of section 19 of the Rent Act because by the said consent decree the tenant was asked to receive a sum of Rs. 75,000/- as a condition for relinquishment of his tenancy rights. Such a tenant is also liable to be prosecuted under sub-section (2) of section 19 of the Rent Act. Therefore, the said condition incorporated in the consent decree being forbidden by section 19 of the Rent Act, the decree passed by the High Court is wholly unenforceable. 75,000/- as a condition for relinquishment of his tenancy rights. Such a tenant is also liable to be prosecuted under sub-section (2) of section 19 of the Rent Act. Therefore, the said condition incorporated in the consent decree being forbidden by section 19 of the Rent Act, the decree passed by the High Court is wholly unenforceable. He also contended that even apart from section 19 of the Rent Act the said consent decree is unenforceable and unexecutable it being against public policy and the provision of section 23 of the Indian Contract Act, 1872. He then contended that for deciding the question as to whether the suit is maintainable or not what will have to be considered is not merely the allegations made by the plaintiff in the plaint in the earlier suit but the totality of the circumstances brought on record and if the allegations made by Shri Sanghavi in the earlier suit are read together with the complaint lodged by him to the police, the contentions raised in the written statement and the issues framed by the High Court, then it is quite clear that the suit was wholly covered by the Rent Act and the High Court had no jurisdiction to entertain and decide the controversy involved in the said suit. He also contended that the receiver was not a necessary party to the present suit as no relief is claimed against the Court receiver and it is the plaintiff who is in actual physical possession of the suit premises. According to Shri Meghani the plaintiff is living in the suit premises for more than 12 years and, therefore, the balance of convenience was in his favour and, therefore, the learned Judge of the City Civil Court was right in granting temporary injunction for protecting his possession during the pendency of the suit. So far as the provision of section 41(b) of the Specific Relief Act are concerned, it was contended by Shri Meghani that under law the plaintiff is obliged to file a suit before the Lowest Court competent to try the suit in view of the provisions of section 15 of the Civil Procedure Code. So far as the provision of section 41(b) of the Specific Relief Act are concerned, it was contended by Shri Meghani that under law the plaintiff is obliged to file a suit before the Lowest Court competent to try the suit in view of the provisions of section 15 of the Civil Procedure Code. Therefore, in view of the provision of section 3 of the City Civil Court Act and section 15 of the Code of Civil Procedure, it is the City Civil Court which is competent to entertain and decide the present suit. Once it is held that the suit is maintainable and the City Civil Court has got jurisdiction to entertain and decide it, then by necessary implication it will have to be held that the said Court has also jurisdiction to grant appropriate interim relief. According to Shri Meghani the provisions of section 41(b) of the Specific Relief Act cannot control the general powers of a Court of granting temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure. In any case the phraseology and expressions used in section 41(b) of the said Act, clearly indicate that it merely applies to institutions of fresh suits and will not cover execution proceedings. The said expression will include the whole action not a part of action, and, therefore, the learned Judge of the trial Court had jurisdiction to entertain the suit and grant temporary injunction. So far as the contention raised by Shri Paranjape based on the breach of the undertaking and the consequent contempt of Court committed by the plaintiff is concerned, it is contended by Shri Meghani that up till now the High Court has not recorded a finding that the plaintiff Shri Merchant has committed a contempt of the Court. Hence the order of the committal is not yet passed. Further, the plaintiff Shri Merchant has challenged the consent decree in which the undertaking is incorporated as being wholly without jurisdiction and unenforceable and hence in this view of the matter it cannot be said that he is in contempt and hence the equitable or discretionary jurisdiction cannot be exercised in his favour. Further, the plaintiff Shri Merchant has challenged the consent decree in which the undertaking is incorporated as being wholly without jurisdiction and unenforceable and hence in this view of the matter it cannot be said that he is in contempt and hence the equitable or discretionary jurisdiction cannot be exercised in his favour. According to Shri Meghani though it is true that under section 47 of the Code of Civil Procedure in the execution proceeding it is open for the present plaintiff to raise the contentions now raised in the suit still an independent suit in that behalf is not barred by any of the provisions of the Code of Civil Procedure either expressly or by the necessary implication. It is not necessary for the plaintiff in such matters, where it is his contention that the decree passed is a nullity, to wait till the decree holder institutes the execution proceedings. It is open to him to challenge the decree itself as being a nullity or unenforceable in law by filing a separate suit and, therefore, it cannot be said that the suit filed by the plaintiff is in any way not maintainable. According to Shri Meghani the provisions of Order 23, Rule 3-A of the Code of Civil Procedure will not apply to the present proceedings in view of the provisions of section 97 of the Code of Civil Procedure (Amendment) Act of 1976 and particularly Clause (S) thereof, which in clearest terms lays down that the amendment in the said provision shall not apply to any suit or proceedings pending before the commencement of the said section, according to Shri Meghani Rule 3-A of Order XXIII is a part and parcel of the whole order and cannot be read in isolation. The said provision lays down a compete Code in itself. Initially by Rule 3 of Order XXIII a procedure is laid down and an obligation is cast upon the Court to record a finding in writing about its satisfaction regarding the lawfulness of the compromise. After such a procedure is followed and then a decree is passed in terms of Rule 3 the provision of Rule 3-A will come into operation. After such a procedure is followed and then a decree is passed in terms of Rule 3 the provision of Rule 3-A will come into operation. As the substantive provision of Rule 2, as, amended would not apply to the suit filed before the High Court which was filed in the year 1972 and was pending when the Amendment Act came into force, the provision of Rule 3-A cannot also apply to a suit flowing from the said pending proceedings. Therefore, according to Shri Meghani the provision of Order 23, Rule 3-A will not apply to the present suit. On merits also he has contended that the plaintiff Shri Merchant had made out a prima facie case to indicate that the consent decree passed by the High Court was without jurisdiction and was, therefore, a nullity or in any case was hit by the provisions of section 19 of the Rent Act or section 23 of the Contract Act. He also contended that on the touch-stone of the balance of convenience also, as the plaintiff Shri Merchant is in physical possession of the premises for several years, if he is dispossessed from the suit premises at this stage he will suffer irreparable losses which cannot be compensated. On the other hand Shri Sanghavi, the defendant is already residing in a separate flat and he wants the suit premises only as an additional accommodation to carry out his hobbies, such a music, and other fine arts. Therefore, taking into considerations the totality of the circumstances the learned Judge of the City Civil Court was right in granting the temporary injunction for protecting the right, title and interest of the plaintiff during the pendency of the suit. 11. At the outset it cannot be forgotten that this is an appeal filed against an order passed by the City Civil Court at an interim stage granting temporary injunction in favour of the plaintiff Shri Merchant under Order 39, Rule 2 of the Code of Civil Procedure. Therefore, obviously it will neither be fair nor proper to probe into the controversy on merit and to determine finally the issues involved in the suit at this stage. Therefore, I do not propose to enter into or probe into the various questions raised before me. Therefore, obviously it will neither be fair nor proper to probe into the controversy on merit and to determine finally the issues involved in the suit at this stage. Therefore, I do not propose to enter into or probe into the various questions raised before me. I am only required to find out at this stage as to whether while exercising the jurisdiction vested in him under Order 39, Rules 1 and 2 of the Code of Civil Procedure, the learned Judge of the City Civil Court was right in granting the temporary injunction restraining the defendant from enforcing or executing the decree passed by the High Court. 12. In my opinion, there is no substance in the contention raised by Shri Paranjape that as the plaintiff Shri Merchant has committed breach of the undertaking given by him to the High Court as incorporated in the consent terms and the consent decree he has no right to be heard at this stage. It is an admitted position that merely an application under the Contempt of Courts Act is filed against the present plaintiff Shri Merchant and the same is still pending. It will not be fair or proper at this stage to deal with this contention in detail as this Court is seized of the matter. I also do not propose to go into the details of the controversy raised in the suit itself in order to find out as to whether the earlier decree passed by the High Court was a nullity and/or was without jurisdiction. More so in view of the rival contentions raised before me. According to Shri Paranjape while deciding the question as to whether a particular Court has got jurisdiction or not to entertain and decide the suit, what is to be looked into is nothing but the allegations made in the plaint. According to him the allegations made in the plaint alone will determine the jurisdiction of the Court and by raising several contentions in the written statement it is not open to the defendant to oust the said jurisdiction. In support of this contention Shri Paranjape has placed strong reliance upon the decision of this Court in (Sarfarazali Nawabali v. Miss Manek G. Burjorji)1, 78 Bom.L.R. 704. In support of this contention Shri Paranjape has placed strong reliance upon the decision of this Court in (Sarfarazali Nawabali v. Miss Manek G. Burjorji)1, 78 Bom.L.R. 704. On the other hand it is contended by Shri Meghani that while deciding the question as to the jurisdiction of the Court it cannot be left to the ingenious drafting of the plaint. It will have to be decided on the touch stone of the totality of the circumstance brought on record. For deciding the question of jurisdiction not only the allegations made in the suit but the allegations and the averments made in the written statement as well as evidence will have to be looked into. It is not the form of the suit which will decide the question but it is the substance of the matter which must prevail. In support of his contention Mr. Meghani has relied upon the decisions of the Supreme Court in (1) (K.K. Chari v. A.M. Sheshadri)2, A.I.R. 1973 S.C. 1311; (2) (Smt. Nai Bahu v. Lala Ramnarayan others)3, A.I.R. 1978 S.C. 22 and (3) (Mohit Gajadhir Ahir v. Inderbali Rangai Ahir and others)4, A.I.R. 1977 Bom. 445 : 1977 U.C.R. (Bom.) 360. On one hand it is contended by Shri Meghani that earlier suit was covered by the provisions of Rent Act. On the other, it is contended by Shri Paranjape that to the said suit the landlord was not a party and it was merely a suit filed by Shri Sanghavi who was a tenant of the suit premises against Shri Merchant who was a rank trespasser. According to Shri Paranjape it was merely a suit for possession filed by a tenant against a trespasser and, therefore, none of the questions contemplated or covered by the Rent Act was involved in the suit filed before the High Court. Shri Paranjape then contended that in any case in view of the consent decree, it will have to be held that by necessary implication all the allegations made by the defendant in the written statement were wholly given up and Shri Merchant had submitted to the jurisdiction of the Court and has also accepted the consent decree. Shri Paranjape then contended that in any case in view of the consent decree, it will have to be held that by necessary implication all the allegations made by the defendant in the written statement were wholly given up and Shri Merchant had submitted to the jurisdiction of the Court and has also accepted the consent decree. Shri Paranjape has also contended that apart from the consent decree we have on record an order passed by the High Court, vide Exhibit A dated 5-11-1979, wherein it is in clearest terms recorded that the learned Counsel for Shri Merchant had unconditionally withdrawn all the allegations made against Shri Sanghavi as well as against Nargis Banu and Shri Bilawala, Solicitor. A dispute is raised by Shri Meghani as to the interpretation of this order because according to him this withdrawal of the allegations only related to the personal allegations made against Shri Sanghavi or Nargis Banu or the Solicitor and it had nothing to do with the other contentions raised in the suit. I do not propose to enter into the said controversy also at this age. In view of the matter it is also not necessary for me to deal with the contention of Shri Paranjape that in view of the consent decree by necessary implication all the pleas raised by the defendant in that suit were given up and there is also a presumption in law about the lawful character of the compromise decree, though it will have to be noted that in support of this contention Shri Paranjape was relying upon a decision of the Supreme Court recorded in (Suleman Noormohammed v. Umerbhai Janubhai)5, A.I.R. 1978 S.C. 952, wherein it is observed by the Supreme Court that while recording a compromise under Order 23, Rule 3 of the Code of Civil Procedure it is not necessary for the Court to say in expressed terms in the order itself that it was satisfied that the compromise was lawful one and it will have to be presumed to have done so unless contrary is shown. 12-A. I do not also propose to deal with the question about unlawfulness of the decree at this stage viz. the contention by Shri Meghani about the unlawfulness of the decree in view of the provisions of section 19 of the Rent Act or of section 23 of the Contract Act. 12-A. I do not also propose to deal with the question about unlawfulness of the decree at this stage viz. the contention by Shri Meghani about the unlawfulness of the decree in view of the provisions of section 19 of the Rent Act or of section 23 of the Contract Act. To say the least these are not pure questions of law but in any case are mixed questions of law and fact. This is more so in view of the rival contentions raised before me. On one side it is asserted that the tenancy in favour of Nargis Banu was merely a benami one and she had never surrendered the said tenancy nor possession was ever delivered to the landlord. On the other hand it is contended that in fact Nargis Banu was the tenant of the suit premises and she surrendered the tenancy rights as well as possession and after taking over possession of the suit premises the landlord created a fresh tenancy in favour of Shri Sanghavi, and Shri Merchant is a trespasser. Thus in substance it was contended that the suit filed before the High Court was between the lawful tenant and trespasser. It is not necessary to decide this question in this appeal. 13. There is one more reason why I do not propose to deal with this question because admittedly under section 47 of the Code of Civil Procedure in the execution proceeding it is open for a judgment-debtor to challenge the decree on the ground of nullity. In terms section 47 confers a right upon the executing Court to decide all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It is by now well settled that such a question could be raised in execution proceeding. In this context a reference could usefully be made to the decisions of the Supreme Court in (Sunderdas v. Ramprakash)6, A.I.R. 1977 S.C. 1201 and in Smt. Nai Bhau v. Lala Ramnarayan and others, A.I.R. 1978 S.C. 22 as well as a decisions of this Court in (Dadu Raghu Patil v. Tukaram Ranba Dhere)7, 60 Bom.L.R. 715. 14. In this context a reference could usefully be made to the decisions of the Supreme Court in (Sunderdas v. Ramprakash)6, A.I.R. 1977 S.C. 1201 and in Smt. Nai Bhau v. Lala Ramnarayan and others, A.I.R. 1978 S.C. 22 as well as a decisions of this Court in (Dadu Raghu Patil v. Tukaram Ranba Dhere)7, 60 Bom.L.R. 715. 14. It is also not necessary to consider the scope and ambit of Rule 3-A of Order 23 of the Code of Civil Procedure for the purpose of this appeal, though I have made a detailed reference to the submissions made by the learned Counsel for both the sides as to the construction and interpretation of the said rule. 15. It is well settled that the power conferred upon the Court to grant an injunction which is in the nature of equitable relief is to some extent discretionary. Grant of injunction is a serious matter and the Court should always take good care to grant temporary injunction in those cases only where such an injunction is essential. It being in the nature of an inequitable manner is not entitled to such an indulgence. Before seeking such a relief of temporary injunction the applicant is obliged to satisfy the Court by showing that an immediate irreparable injury is likely to result if an injunction is not granted and there is no other remedy open to him by which he can protect himself from the consequences of the apprehended injury. In this context a reference could usefully be made to a decision of the Supreme Court in (Municipal Corporation of Delhi v. Sureshchandra and another)8, A.I.R. 1976 S.C. 2621 and particularly to the following observations in para 10 of the said decision which read as under :--- "It is also seems that the attention of the learned Judge was not directed towards section 41(h) of the Specific Relief Act, 1963 which lays down that an injunction, which is a discretionary equitable relief cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Learned Counsel for the appellant Corporation points out that there was the ordinary machinery of appeal, under section 169 of the Delhi Municipal Corporation Act, 1957 open to the assessee respondent. Learned Counsel for the appellant Corporation points out that there was the ordinary machinery of appeal, under section 169 of the Delhi Municipal Corporation Act, 1957 open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit is barred or not on this ground. All we need say is that this consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction." While deciding the present appeal also this principle will have to be born in mind. 16. A contention was also raised before me by the learned Counsel for the appellant that in view of the provisions of section 41(b) of the Specific Relief Act, 1963, the City Civil Court which is subordinate to High Court had no jurisdiction to grant injunction restraining the present appellant from instituting or prosecuting executing proceeding in the High Court or from enforcing the consent decree. In support of this contention reliance is placed on two decisions of this Court in (1) (Udyog Mandir v. M/s. Contessa Knitwear and others)9, A.I.R. 1975 Bom. 158 and (2) (Krishnadevi P. Gupta v. Banwarilal Hanumanprasad Tibrewala)10, A.I.R. 1975 Bom. 233. In my opinion there is much substance in this contention. From these two decisions of this Court it is quite clear that the principle contained in section 41(b) of the Specific Relief Act will govern the jurisdiction of the courts in the matter of grant of injunctions. It is no doubt true that it is contended by Shri Meghani that the said provision will only apply to cases of perpetual injunction and it cannot control the jurisdiction of the Civil Court while dealing with the question of granting of temporary injunction. However, in my opinion this contention of Mr. Meghani is not well founded in view of the following observations of this Court in Udyog Mandir v. Contessa Knitwear and others, A.I.R. 1975 Bom. 158. In para 6 of the judgment it is observed :--- "Even assuming that he had powers to grant such an injunction, he could certainly not grant an injunction having regard to the injunction of law contained in section 41(b) which could guide a Court in dealing with interim injunction applications. 158. In para 6 of the judgment it is observed :--- "Even assuming that he had powers to grant such an injunction, he could certainly not grant an injunction having regard to the injunction of law contained in section 41(b) which could guide a Court in dealing with interim injunction applications. A Court cannot do even temporarily what it has been prohibited by law from doing permanently." This very decision was subsequently followed by this Court in Krishnadevi etc. v. Banwarilal etc., A.I.R. 1975 Bom. 233. From para 6 of the said decision it is further clear that the decision in Udyog Mandirs case was also followed in (Civil Revision Application No. 417 of 1974, decided on 25th November, 1979)11, by Kantawala C.J. Thus so far as this Court is concerned, it has been laid down as a principle of law that the power of the Court to grant even temporary injunction is controlled by section 41(b) of the Specific Relief Act. 17. It was also contended by Shri Meghani that the provisions of the Specific Relief Act cannot control powers conferred upon a Court for granting temporary injunction under Order 39, Rules 1 an 2 and even apart from the said provisions a Civil Court has got inherent jurisdiction to grant temporary injunction under its inherent powers to do justice between the parties and in support of this contention Shri Meghani has strongly relied upon a decision of the Supreme Court in (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal)12, A.I.R. 1962 S.C. 527. However, the observations of the Supreme Court in the said decision cannot be read in isolation because in para 27 of the said judgment the Supreme Court has clarified the position by observing that :--- "The inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure." Further, in my opinion the view taken by this Court in Udyog Mandirs case gets substantial support from the observations of the Supreme Court in Municipal Corporation of Delhi v. Sureshchandra, A.I.R. 1976 S.C. 2621. That was also a case where an interim injunction was sought for by the plaintiff against the defendant Municipal Corporation of Delhi restraining them from realising an amount on account of house taxes pending disposal of a suit for permanent injunction. That was also a case where an interim injunction was sought for by the plaintiff against the defendant Municipal Corporation of Delhi restraining them from realising an amount on account of house taxes pending disposal of a suit for permanent injunction. Though the trial Court initially granted such an injunction after hearing the parties the injunction was vacated. Then an appeal was filed by the appellant plaintiff before the Delhi High Court, which was allowed and against the said decision of the Delhi High Court the Municipal Corporation of Delhi approached the Supreme Court. The Supreme Court while dealing with the question of temporary injunction ultimately applied the principles laid down in section 41(b) of the Specific Relief Act, 1963, which lays down that an injunction which is a discretionary and equitable relief cannot be granted when an equally efficacious relief is available or can certainly be obtained by any other usual mode or proceeding except in case of breach of trust. Therefore in terms the Supreme Court has applied the principle laid down in section 41(b) of the Specific Relief Act, while construing the jurisdiction of Civil Court in the matter of granting temporary injunctions. If this is so, then obviously this Court was right in applying the principle incorporated in sub-section (b) of section 41 of the Specific Relief Act to the proceedings instituted under Order 39, Rules 1 and 2 of the Code of Civil Procedure. Section 41(b) of the Specific Relief Act reads as under :--- "41. An injunction cannot be granted. (a) ....................... (b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. ............" In view of this provision and the law laid down by this Court in Udyog Mandirs case obviously it was not open to the City Civil Court to grant an injunction restraining the present appellant from instituting or prosecuting any proceeding in the High Court, which is admittedly not a Court subordinate to the City Civil Court. 18. However, a contention is raised by Shri Meghani that the expression and phraseology used in section 41(b) viz. "From instituting or prosecuting any proceeding" will only include institution of a suit or original proceeding and not a part of proceeding viz. an execution proceeding. 18. However, a contention is raised by Shri Meghani that the expression and phraseology used in section 41(b) viz. "From instituting or prosecuting any proceeding" will only include institution of a suit or original proceeding and not a part of proceeding viz. an execution proceeding. It is well settled that for finding out the real meaning of the word "proceeding" the context in which the word has been used will have to be taken into consideration. In sub-section (a) of section 41 the expression used by the legislature is "institution of a suit". Then comes sub-section (b) of section 41 wherein the word "any proceeding" is used by the legislature obviously in a generic sense. In its generic sense "proceeding" means form and manner of conducting judicial business before a Court or a judicial officer. If the legislature wanted to restrict the meaning of the word "proceeding" then it could have used a different phraseology. The word "proceeding" is proceeded by the word "any" which clearly means "each, and every or all". If on considering the scheme and object of the Specific Relief Act add particularly section 41 thereof, it is found that the said word is capable of covering "each and every or all" proceedings, then in my opinion it will have to be held that legislature used the said expression not in a restricted sense but in a generic sense. In substance section 41(b) incorporates a rule of judicial discipline which lays down or forbids the subordinate Court from issuing injunctions restraining any person from instituting or prosecuting any proceeding in a higher Court. Obviously the execution proceeding is a proceeding within the meaning of section 41(b) of the Specific Relief Act. In substance by the present impugned order passed by the City Civil Court defendants are restrained from instituting proceedings before the High Court and that too in pursuance of the decree granted by the High Court itself. Therefore, in my opinion while granting the present injunction, though temporary in nature, the learned Judge of the City Civil Court has not exercised his jurisdiction judiciously and hence the said order is liable to be set aside. 19. This aspect of the matter can be considered from a different angle also. Therefore, in my opinion while granting the present injunction, though temporary in nature, the learned Judge of the City Civil Court has not exercised his jurisdiction judiciously and hence the said order is liable to be set aside. 19. This aspect of the matter can be considered from a different angle also. At least it is an admitted position before me that the consent decree passed by the High Court will have to be read as an integrated whole and one clause of it cannot be separated from another. It is also an admitted position that the City Civil Court has no jurisdiction to issue an injunction against the defendant restraining him from instituting proceedings under the Contempt of Courts Act before the High Court for breach of undertaking. This seems to be the reason why the learned Judge of the City Civil Court while passing the impugned order has made it clear that the temporary injunction granted by him will not apply to the undertaking given by the plaintiff to the High Court as a part of the consent decree. He has also made it clear that Shri Sanghavi is at liberty to approach the High Court on the ground of Shri Merchants failure to carry out the undertaking and the injunction granted by the City Civil Court shall not even by implication prevent Shri Sanghavi from having resort to the High Court in that respect. If admittedly the consent decree passed by the High Court is to be read as interpreted whole and one clause of it cannot be separated from another, then in my opinion temporary injunction granted by the City Civil Court will result in further complications or anomalies. While it is open for the defendant to institute and proceed with the proceedings under the Contempt of Courts Act, for enforcing the undertaking incorporated in the consent decree which cannot be separated from the other part of the decree itself, the defendant is restrained from instituting execution proceeding for enforcement of the consent decree. To say the least the order passed by the learned Judge is wholly inconsistent and self-contradictory. To say the least the order passed by the learned Judge is wholly inconsistent and self-contradictory. Once it is found that the undertaking incorporated in the consent decree cannot be separated from the other part of the decree and it is further found that no injunction could be granted so far as that part of the consent decree is concerned, then obviously the learned Judge of the City Civil Court has committed an error in granting a temporary injunction against the defendant from instituting execution proceedings for execution of the same decree. 20. Even on the touch-stone of the balance of convenience or otherwise the impugned order passed by the City Civil Court cannot be sustained. As already observed, the plaintiff Shri Merchant is not without a remedy in this behalf. In the execution proceeding itself in view of the provisions of section 47 of the Code of Civil Procedure it is open to him to challenge the said decree on the ground of nullity or that the High Court had not jurisdiction to pass the said decree itself. 21. As to what is the scope of section 47 is by now well settled by the decisions of the Supreme Court as well as of this Court. Therefore, an equally efficacious remedy is available to the plaintiff if the contentions raised by him are true. Hence it can safely be said that in view of the provisions of section 41(h) of the Specific Relief Act also he was not entitled to get a temporary injunction. 22. In the view which I have taken it is not necessary to decide the question as to the maintainability of the suit itself or other contentions raised and argued before me. 23. In the result, therefore, the appeal is allowed with costs. The impugned order passed by the City Civil Court dated 6th and 7th February, 1980 is set aside. In view of this no order in Civil Application No. 861 of 1980 is necessary. 24. On the request of Shri Meghani, learned Counsel for Shri Merchant, the respondent herein, the interim injunction granted by the City Civil Court is continued for a period of two months from today. Appeal allowed. -----