Judgment B. L. Yadav, J. 1. This is plaintiffs First Appeal From Order (M. A) dated 19-4-1994 passed by the Third Subordinate Judge, Motibari, rejecting the application for grant of temporary injunction in a suit filed by the present plaintiff-appellant for cancellation of the decree alleged to have been obtained in collussion and fraudulent manner (including an order of this Court in Civil revision No.1700 of 1990 ). 2. The cases of the appellant has got chequered history. The present plaintiff-appellant Ram Chandra Singh is an auction purchaser in execution of decree in favour of the State Bank of India, Motihari Branch in Mortgage suit No 88/9 of 1977/80 for recovery of the outstanding dues to the tune of rs.1, 15, 312 32 Paise against Arun Prakasb Pandey (respondent No.1), who had obtained an agricultural loan of Rs.68, 320/-, but failed to pay the same in time. Consequently the State Bank (respondent No.10) filed a suit for recovery of the amount along with interest, which was decreed and the property of respondent No.1 was put on auction sale and the appellant purchased the same at the auction sale. 3. In execution of decree Smt. Savitri Devi (respondent No.9), sister of Arun Prakash Pandey filed an application under Sec.47 of the Civil procedure Code (for short "the Code") with a prayer that the execution of the decree was erroneous against Arun Prakash Pandey, treating the entire property to be bis sole property, as she and her sisters were also co-sharers in the property, as the father of Arun Prakash Pandey had died in 1958 after enforcement of the Hindu Succession Act, 1956. Hence the objector Smt, savitri Devi (respondent No.9) was also heir along with Arun Prakash pandey (respondent No.1) and her share in the joint property may not be put on auction sale. That application was rejected and against that order a civil Revision No.1700 of 1990 (Smt Savitri Devt V/s. State Bank of India)including this appellant was filed in this Court, which came up for hearing before the Hon ble Brother Nagendra Rai (for whom I have got all regards ). The aforesaid Revision was allowed by order dated 21-5-1992 and the application under Sec.47 of the Code was also allowed. The aforesaid Revision was allowed by order dated 21-5-1992 and the application under Sec.47 of the Code was also allowed. It was held that as Smt Savitri Devi and others, being sister of Arun Prakash Pandey, judgment debtors, were also heits and it was joint property, hence any portion of the property need not be put on auction, sale, nor even the alleged share of Arun Prakash Pandey could be put to auction sale, nor the appellant was justified in purchasing it. It was further observed unless the suit for partition was, filed and the share of the parlies, including the share of Arun Prakash was specified, after preparation of the preliminary decree and final decree, the execution of the decree cannot proceed. 4. Against the said order of this Court two sparate Special Leave petitions to the Supreme Court were filed ; one by the Bank which was dismissed as withdrawn on 25-6-1992 In this way the order of this Court allowing the Civil Revision became final in all respects. After dismissal of these two Special Leave Petitions the plaintiff-appellant filed the suit justifying the proverb, what a desperate man can not do. In this suit, the application for temporary injunction was filed and the same was dismissed. Against that order the present F. A. F. O. has been filed. 5. It is to be recalled that a partition suit had already been filed by smt. Savitri Devi and others against Arun Prakash Pandey and that was decreed and preliminary decree was also prepared, but the final decree has not been prepared A suit for recovery of the mortgage money was filed by the state Bank against Arun Prakash Pandey and the same was decreed and, as stated earlier, the propery was put to auction sale and was purchased by the present plaintiff appellant, and the objection of Smt. Savitri Devi under section 7 of the Code was rejected and the Civil Revision No.1700 of 1990 against the said order was allowed by this Court. 6. The present appellant thereafter filed a suit (Title Suit No.4 of 1994) seeking the aforesaid relief and to set aside the judgment and order of this Court dated 21-5-1992, passed in Civil Revision No.1700 of 1990, making averments that even the order of this Court allowing the said Revision was obtained fraudulently by misleading the Court. 6. The present appellant thereafter filed a suit (Title Suit No.4 of 1994) seeking the aforesaid relief and to set aside the judgment and order of this Court dated 21-5-1992, passed in Civil Revision No.1700 of 1990, making averments that even the order of this Court allowing the said Revision was obtained fraudulently by misleading the Court. In this suit (No 4 of 1994)an application for temporary injunction was filed, which was dismissed by the impugned order dated 19-4-1994 and against that order the instant First appeal From Order (M. A ) has been filed. 7. An application for ad interim injunction has also been filed by the appellant in this First Appeal From Order. The learned counsel for the parties suggested that as the Counter Affidavit and Rejoinder Affidavits been filed and the respondents are represented, it is convenient to dispose of the appeal on merits as well as the application for grant of temporary injunction. This is how the Appeal and the application for temporary injunction are being disposed of together. 8. The learned counsel for the appellant contended that the prima facie case and the balance of convenience was in favour of the appellant. Consequently, the application for temporary injunction must not have been rejected by the trial court by the impugned order dated 19-4-1994 It was also urged that as the order of this Court dated 21-5-1992 passed in Civil Revision no.1700 of 1990 on the application filed under Sec.47 of the Code and the fraud vitiates the entire proceedings, hence the said order dated 21-5-1922 passed in Civil Revision No.1700 of 1999 may be ignored and temporary injunction may be granted and this appeal be allowed. He placed reliance on AIR 1952 Pat 48 ; AIR 1994 ,sc 853 ; AIR 1958 Pat 130 9. Mr. Uma Kant Shukla appeared for respondent Nos.7 to 9 and mr. Panditjee Pandey for respondent Nos 1 to 6 Shri Pandey adopted substantially the arguments of Shri Shukla. Shri Shukla contended that no fraud as alleged, was proved. He placed reliance on AIR 1952 Pat 48 ; AIR 1994 ,sc 853 ; AIR 1958 Pat 130 9. Mr. Uma Kant Shukla appeared for respondent Nos.7 to 9 and mr. Panditjee Pandey for respondent Nos 1 to 6 Shri Pandey adopted substantially the arguments of Shri Shukla. Shri Shukla contended that no fraud as alleged, was proved. The Civil Revision No 1700 of 1990 was decided by this Court on merits after hearing the counsel for the parties including the plaintiff of the present suit and the same was allowed and that order was upheld by the Supreme Court in the aforesaid two special Leave Petitions ; one filed by the present appellant Ramchandra Singh (S. L P. No.8119 of 1992) against Smt. Savitri Devi which was disposed of as withdrawn by order dated 25-6-92, and the other Special Leave Petition was filed by the state Bank of India (S L P. No 10800 of 1992) against Smt. Savitri Devi which was also dismissed by the Supreme Court by order dated 29-3-1993 after hearing the learned counsel of both sides. Under these circumstances it cannot be said that any fraud was placed either in Civil, revision No 1700 of 1990 in this Court, or in the proceedings before the apex Court in the aforesaid Special petitions. As the Supreme Court also dismissed the Special Leave Petitions, hence to this Court merged with the orders of the Apex Court. In such matters the, doctrine of merger applies. In ease the appellant was aggrieved he can at the best apply for restoration when the matter was fought in this Court and also in the Apex Court. There was no question of fraud. On merits of the appeal it was urged that in order to obtain temporary injunction the principles are to prove prima facie case, balance of convenience and irreparable loss, but nothing has been proved by the appelant. 10. It was further urged by Shri Shukla that as this Court in the order dated 21-5-1992 has made an observation that without filing a suit for partition every co-sharer has got interest in every inch of the land. No part of the same, under the assumption that a particular part of the property belongs to Arun Prakash Pandey (respondent No.1), can be put to auction sale. No part of the same, under the assumption that a particular part of the property belongs to Arun Prakash Pandey (respondent No.1), can be put to auction sale. The appellant was directed to file objection in the proceedings for preparation of the final decree, but instead of filing the same, the appllant filed the present suit on the allegation that the judgment and order of this court was obtained by playing fraud But in the absence of any concealment of material facts or missepresentation a fraud cannot be deemed to have been committed particularly in absence of details. The application for, for interim injunction made and disposed of in view of the provisions of order 39 Rule 1 of the Code, but the provisions of Sections 38 and 41 (a)and (b) of the Specific Relief Act, 1963 (compendiously "the Act") providing when perpetual injunction can be granted and when it can be refused, have also to be kept in mind Sec.41 (a) and (b) enacts the provision that where prayer for injunction is to stay the proceedings in a Court not subordinate to that from which injunction is sought and to stay the judicial proceedings pending at the institution of the suit in which the injunction is sought unless such restrain is necessary to prevent the multiplicity of proceedings. No ground for interference has been made out, particularly when the order of this Court has been upheld by the Apex Court in two separate Spacial leave Petition. The order of this Court merged with the order of the Apex court rejecting the Special Leave Petitions. Mr. Shukla leaned heavily on cotton Corporation of India V/s. United Industrial Bank Limited and others ( AIR 1983 SC 1272 ) and the Constitution Bench case in A. R. Antuley V/s. B. S. Nayak ( AIR 1988 SC 1531 ) and in Raja Ram Thakur V/s. Joseph Nehal (1987 p. J. L. J. R.117 ). 11. Having scrutinised the submissions of the learned counsel for the parties, the most question for determination is as to whether the impugned; order refusing temporary injunction was correct and what are the principles for grant of temporary injunction, by and whether it must be, in some case, consistent with Sec.38 and 41 (a) and (b) of the Act. 12. In the instant case the learned Subordinate Judge. 12. In the instant case the learned Subordinate Judge. Motihari in the impugned order has recorded a finding that even the plaintiff-appellant has got a prima facie case, but the balance of convenience and irreparable loss do not lie in his favour. The order of this Court in Civil Revision No.1700 of 1996 was upheld in two separate Special Leave Petitions, as stated above. The relief claimed in the suit was not consistent with the findings and direction of this Court. The decision, findings and directions have been held to be correct by the Apex Court. The share of Arun Prakhsh Pandey (respondent No.1 ). judgment-debtor in the mortgage suit filed by the State" bank of India (respondent No.10) was not specified in the joint property, which was mortgaged, hence the auction sale to the extent of 30 acres of land would not be valid unless in a partition suit his share was specified. Needless to say that the suit for partition (No.17/5 of 1976/78) was fifed by Smt. Savitri Devi (respondent No.9) against Arun Prakash Pandey (respondent no.1) including others and was decreed, and a preliminary decree was prepared and the proceedings in the final decree were in progress. It was indicated in the judgment and order of Hon ble Brother Nagendra Rai that unless a suit for partition was decreed and the share of Arun Prakash Pandey (respondent No.1) was specified, no land could be put to auction sale. In the proceedings for preparation of final decree the aggrived party could raise an objection. But filing a separate suit on the ground of fraud could not be appreciated nor it was consistent with the decision of this Court, upheld by the Supreme Court in two Special Leave Petitions. It could not, in my opinion, constitute a prima facie case. Similarly under the circumstances of the case no balance of convenience was in favour of the plaintiff-appellant, nor he suffered any irreprable loss. In this way the first pre-requisites for grant of temporary injunction were not proved or made out. 13. It could not, in my opinion, constitute a prima facie case. Similarly under the circumstances of the case no balance of convenience was in favour of the plaintiff-appellant, nor he suffered any irreprable loss. In this way the first pre-requisites for grant of temporary injunction were not proved or made out. 13. Reverting to the question of fraud, Ramchandra Singh, appellant was a party in the said revision (C. R 1700 of 1990) and the same was allowed by this Court by order dated 21/5/1992 and he also filed S L P. No 8119 of 1992 before the Supreme Court (Ramchandra Singh v Savitri Devi and others,)which was dismissed as withdrawn on 25/6/1992, and Similarly SLP. No.10800 of 1992 filed by the State Bank of India against Smt. Savitri Devi and others, was dismissed on 29/3/1993 on merits. The order of this Court in revision merged in the order of the Supreme Court dismissing the said special Leave Petitions. There was no question of fraud in this matter. 14. Just a few words about the cases cited at the Bar. Sheo Sagar singh V/s. Sitaram Kumar (AIR 1952 Patna 48) was a case where fraud was committed on the Court and it was held that in case fraud was proved to have been committed on the court, the court can set aside the order in exercise of its inherent power. In the present case fraud has not been proved to have been committed either on the party or upon the court. Consequently that case is of no assistance to the appellant. 15. S. P. Changalvaraya Naidu V/s. Jagannath (A I. R, 1994 S. C.853)was based on particular facts, where with holding of vital document relevant to the litigation was held to be fraud committed on the Court. The facts in this Appeal are entirely different as no prima facie case, balance of convenience or irreparable injury or fraud was made out. This case is of no assistance to the appellant. 16. Kedar Nath Babu Lal V/s. Prabhu. Narayan Satru (A. I. R.1958 Patna 130) was also a case pertaining to the fraud upon the Court and is of no assistance to the appellant. 17. Reverting to the last question urged by Mr. This case is of no assistance to the appellant. 16. Kedar Nath Babu Lal V/s. Prabhu. Narayan Satru (A. I. R.1958 Patna 130) was also a case pertaining to the fraud upon the Court and is of no assistance to the appellant. 17. Reverting to the last question urged by Mr. Shukla that in granting temporay injunction apart from consideration under Order 39 Rule 1 of the code, the Court may also take into consideration the provisions of Sections 38 and 41 of the Act. In fact Sec.38 of the Act deals when perpetual injunction can be granted and Sec.41 of the Act Indicates when a perpetual injunction can be refused. No doubt, the effect of temporary injunction is till the disposal of the suit and perpetual injunction remains operative for un indefinite period. But in case there is a specific bar for not granting a perpetual injunction that must also be taken into consideration. In my opinion, the principles for granting temporary injunction must co-exist with the principles for granting permanent injunction. Ex-Abundanti Cautela, the statutory provision of Sec.41 of the Act to the extent it is material, is set out :- "an injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings ; (b) to restrain any person from instituting or presenting any proceeding in a court not subordinate to that from which injunction is sought. " 18. A bare reading of the aforesaid provision would indicate that injunction cannot be granted when the effect of the same is to restrain a party from proceeding in the matter or to refrain a Court from proceeding to dispose of the matter in Cotton Corporation of India Limited v United industrial Bank Limited and others (A. I. R.1983 S. C.1272) (supra), the case relied upon by the learned counsel for the respondents, it was held that the court cannot grant temporary injunction restraining a person from prosecuting on judicial proceeding which such person is otherwise entitled to institute in a Court not subordinate to that from which the injunction is sought. 19. 19. In my opinion, in the matters of grant of temporary injunction, the Court may also consider as to whether there is any bar in granting a perpetual injunction as contemplated by Sec.41 (a) and (b) of the Act and other provisions In case there was any such bar, just like a bar created by section 41 (a) and (b) of the Act to the effect that a perpetual injunction cannot be granted to restrain any person from prosecuting any judicial proceeding pending at the time of institution of suit, unless it is necessary to prevent multiplicity of proceedings or to restrain any person from prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought, that could also be taken into consideration. In the the present case since much prior to the filing of the present suit by the plaintiff-appellant, Smt. Savitri Devi (respondent No.9) has filed a suit for partition, which was decreed and preparation of the final decree was in progress, hence the effect of granting temporary injunction to the plaintiff-appellant would be to restrain the earlier plaintiff (Smt. Savitri Devi) from prosecuting a judicial proceedings and the effect of granting temporary injunction is not to prevent multiplicity of proceeding, rather it would multiply judicial proceedings. 20. The view I am taking gets support from Narayandos V/s. Saraswatibai (A. I. R.1968 Bombay 280), the ratio of which was that in case the plaintiff cannot get a permanent injunction, he cannot get temporary injunction. While interpreting Sec.41 (b) of the Act, the Apex Court (in Municipal corporation, Delhi v Suresh Chandra Jaipuria. A. I. R.1976 S. C.2621) held that a perpetual injunction could not be granted where equally efficacious relief was avilable in any other usual mode. In the instant case the plaintiff could get relief in any other usual mode by becoming a party in earlier suit filed by Smt. Savitri Devi (respondent No.9) on by raising objection, in proceedings for preparation final decree. 21. In the present case the respondents, except the Bank, are proceeding in the partition suit, particularly in preparation of the final decree. The relief claimed by the plaintiff-appellant for temporary injunction would restrain the first and second party from proceeding in the final decree in that suit pending in the Court of the Third Subordinate Judge, Motihari. 21. In the present case the respondents, except the Bank, are proceeding in the partition suit, particularly in preparation of the final decree. The relief claimed by the plaintiff-appellant for temporary injunction would restrain the first and second party from proceeding in the final decree in that suit pending in the Court of the Third Subordinate Judge, Motihari. In view of the dictum )aid down by their Lordships of the Supreme Court no party can be directed or restrained from proceeding in the matter. Consequently, the prayer for temporary injunction cannot be granted and was in the teeth of the provision of Sec.41 of the Act. 22. Similarly in A. R. Antulay V/s. R. S. Kayak and other (A. I. R.1988 s. C.1531) (supra) in paragraph 27 it was, observed by the Constitution bench of the Apex Court that the judgment of a Court, in case the Leave petition has been dismissed, would be binding in all the subsequent proceedings. As the order of this Court dated 21/5/1992 passed in Civil Revision no, 1700 of 1990 was up held in the aforesaid two Special Leave Petitions, bearing S. L. P. Nos.8119 of 1992 and 10800 of 1992. were dismissed, consequently the same is binding and as such, the application for grant of temporary injunction cannot be allowed against the spirit and direction contained in the order of this Court in the aforesaid Civil Revision. 23. Resultantly, in view of the discussions made herein before, no ground for grant of temporary injunction has been made out, and the application for temporary injunction was correctly rejected by the trial court. Consequently there is no merit in this Misc. Appeal, which is liable to be dicmissed. 24. In view of the premises aforesaid this Appeal and the application for grant of temporary injunction fail and are hereby dismissed, but without any order as to costs. Appeal Dismissed.