Judgment : D. K. Seth, J. 1. On the prayer of the learned Counsel for the petitioners leave is granted to convert the application into one under Article 227 of the Constitution of India. 2. THE petitioner's case inter alia, was that one Naseer Uddin purchased Haveli by Registered sale deed dated 17th May 1917 excecuted by Babu Fakhrullah Khan. Naseer Uddin sold the Haveli in three lots by three registered sale deeds. THE first lot comprising of eastern portion of the Haveli was sold in 1922 to Mohammad Asghar. He sold the second lot comprising of western portion in 1963 to Chhajju. THE lot comprising of the middle portion was occupied by the daughters of Inayat Hussain, namely, Bashiran and Serajan. This middle portion is the disputed property which was sold by Naseer Uddin in favour of petitioner No. 1 and husband of petitioner No. 2 who were real brothers by Registered sale-deed dated 28th May, 1970. THE petitioners filed Original Suit No. 13 of 1978 for eviction of the tenants in respect of the said suit property. THE said suit was decreed. Execution Case No. 17 of 1982 was levied upon the said decree for eviction of Mohammad Hussain, tenant. THE said decree was confirmed in Civil Appeal No. 408 of 1982 by the learned 2nd Additional District Judge, Bijnor, by a Judgment and decree dated 6th May, 1986. One Shahzadi filed Original Suit No. 178 of 1986 for injunction restraining the petitioners from interferring with the possession of the said Shahzadi in respect of the suit property on the allegation that the said Shahzadi acquired, title to the suit property by virtue of a sale deed dated 16th November, 1985 executed by the sisters of Naseer Uddin alleging that Inayat Hussain, father of Naseer Uddin, was the owner of the suit property. In connection with the said suit, upon an application for injunction, by an order dated 24th March, 1987, temporary injunction was granted. THE said temporary injunction was confirmed on 10th December, 1987. THE said suit having been dismissed for 10th December, 1987. THE said suit having been dismissed for default, Misc. Case No. 45 of 1988 was registered upon an application under IX, Rule 9, C. P. C. In connection with the said Miscellaneous Case, an interim injunction was issued restraining the petitioners from interfering with the possession of the said Shahzadi. THE said suit having been dismissed for 10th December, 1987. THE said suit having been dismissed for default, Misc. Case No. 45 of 1988 was registered upon an application under IX, Rule 9, C. P. C. In connection with the said Miscellaneous Case, an interim injunction was issued restraining the petitioners from interfering with the possession of the said Shahzadi. THE said interim order was extended till 10th May, 1990. In the meantime, the said Shahzadi purported to transfer the suit property in favour of opposite party No. 1 by virtue of the sale deed dated 30th of July, 1987. THE present opposite parties thereupon filed Original Suit. No. 6 of 1990 on 1st January, 1990 against the petitioner for injunction restraining them from interferring with their posses sion. In connection with the said suit, the opposite parties obtained an ex parte, ad interim injunction which was made returnable on 14th of March, 1990. THE said ex parte order of injunction was vacated on 19th February, 1990 suo mom by the learned Munsif. After the said injunction was vacated in Execution case No. 17 of 1982 arising out of Original Suit No. 13 of 1978, possession of the suit property was delivered through Court to the petitioners. Against the said order dated 19th February, 1990, the opposite parties preferred Misc. Appeal No. 23 of 1990. THE said appeal was allowed by judgment and order dated 7th December, 1994 whereby the order dated 19th February, 1990 was set aside and the respondents were declared to be entitled to take possession in accordance with law. On the other hand, the said Shah zadi made an application for withdrawal of Original Suit No. 178 of 1986 on 28th February 1994 which was allowed by the Court. In this background, the petitioners have impugned the order dated 7th December, 1994 passed by the Additional District Judge, Vth Court, Bijnor in Misc. Appeal No. 23 of 1990 reversing the order dated 19. 2. 1990 passed by the learned Munsif, Najibabad in Original Suit No. 6 of 1990. Sri Dhruva Narayana, Counsel for the petitioners contended that the impugned order cannot be sustained since there cannot be any order for restoration of possession in the facts and circumstances of the case. Appeal No. 23 of 1990 reversing the order dated 19. 2. 1990 passed by the learned Munsif, Najibabad in Original Suit No. 6 of 1990. Sri Dhruva Narayana, Counsel for the petitioners contended that the impugned order cannot be sustained since there cannot be any order for restoration of possession in the facts and circumstances of the case. He con tended that the order of injunction dated 1st January, 1990 passed in Original Suit No. 6 of 1990 was void and non est in view of U. P. Amendment of Order XXXIX, Rule 2 of the Code of Civil Procedure. Inasmuch as according to him, the order of injunction dated 1st January, 1990 having been passed in violation of Section 41 of the Specific Relief Act and, as such, in view of U. P. Amendment of Order XXXIX, Rule 2, the said order is void and non est. Therefore, the said order was rightly vacated by the learned Munsif by his order dated 19th February, 1990. According to him, even if the said order was not vacated, the same would not have affected the execution. A void order is non est and cannot have any effect. His further contention was that in the facts and circumstances of the case, the restoration of possession obtained through execution in another suit cannot be directed to be restored. He also contended that the opposite parties could not have filed Original Suit No. 6 of 1990 when they claimed title through Shahzadi who had already instituted a suit and it was then pending. Therefore, suit No. 6 of 1990 could not be maintained. The opposite party having not come with clean hands is not en titled to any relief. Even then the statement made in the suit does not disclose any title in favour of the opposite parties. Even on equity, they are not entitled to any relief. As such, the order dated 7th February, 1994 should be set aside. 3. THE learned Counsel appearing for the opposite parties Mr. Deo Raj does not dispute the facts as stated above. Even on equity, they are not entitled to any relief. As such, the order dated 7th February, 1994 should be set aside. 3. THE learned Counsel appearing for the opposite parties Mr. Deo Raj does not dispute the facts as stated above. On the admitted facts, he contends that though the interim order was passed ex parte, the same could not have been vacated suo motu without any application for vacating filed by the other side on 19th February, 1990 when the suit was neither fixed nor had been put up and particularly when the injunction was made returnable on 14th March 1990. Therefore, the said order dated 19th February, 1990 was illegal and was rightly set aside by order dated 7th December, 1994. Even if the order dated 1st January, 1990 passed in Original Suit No. 6 of 1990 stood vacated, still then the injunction granted in Misc. Case No. 45 of the 1988 was still continuing restraining the petitioners from obtaining possession. Therefore, by no means, the possession could be obtained by them on 3rd March, 1990 when the injunction granted in Misc. Case No. 45 of 1988 was also subsisting till 10th May, 1990. THE mistake and wrong was committed by the Court in restoring possession on 3rd January 1990. It is for the Court to correct it and, therefore, the learned Additional District Judge had rightly directed the restoration of possession. 4. Case No. 45 of 1988 was also subsisting till 10th May, 1990. THE mistake and wrong was committed by the Court in restoring possession on 3rd January 1990. It is for the Court to correct it and, therefore, the learned Additional District Judge had rightly directed the restoration of possession. 4. ORDER XXXIX, Rule 2 of the Code of Civil Procedure, as applicable to U. P., was amended by U. P. Act 57 of 1976 which came into force with effect from 1st January, 1977 by which a proviso was added to Rule 2 (2) of ORDER XXXIX, which runs as follows: "provided that no such injunction shall be granted - (a) where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963) ; or (b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government ; or (c) to stay, any disciplinary proceeding pending, or intended or, the effect of any adverse entry, against any employee of the Government ; or (d) to affect the internal management or affairs of, any educational institution including a University, or a society ; or (e) to restrain any election or (f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government ; or (g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished ; or (h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being in force; and any order for injunction granted in contravention of these provisions shall be void. " It appears that by reason of the proviso, an injunction granted in contravention of clauses (a) to (h) shall be void. In the present case, we are concerned with clause (a) as has been submitted by Mr. Dhruva Narayana, namely, where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963. In the present case, we are concerned with clause (a) as has been submitted by Mr. Dhruva Narayana, namely, where no perpetual injunction could be granted in view of the provisions of Section 38 and Section 41 of the Specific Relief Act, 1963. According to him under Section 41 of the Specific Relief Act, injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in Court not subordinate to that from which injunction is sought. 5. IN order to appreciate the substance of his contention, we may refer to the relevant provision of Section 41 of the Specific Relief Act which is quoted below: "41. Injunction when refused.- 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 restrain is necessary to prevent a multiplicity of proceedings ; (b) to restrain any person from instituting or prosecuting any proceeding in a court nor subordinate to that from which the injunction is sought. " 6. MR. Dhruva Narayana strenuously argued that this case comes within the purview of clause (b) of Section 41. In the present case, the opposite par ties made a prayer for restraining the petitioners from interferring with their possession. Such an injunction does not come within the purview of clause (a ). But I am unable to agree with him. Even then such an injunction would have an indirect effect of restraining the petitioners from prosecuting the pending execution case. Then it is permissible because of the exception contemplated for preventing unnecessary multiplicity of litigation, as has been recognised in the case of Ram Sadan v. Mathura, AIR 1925 Cal 233. It lays down two propositions before such exception can be attracted, namely, (1) at the time of the institution of the suit in which injunction is sought a judicial proceeding must be pending in another Court and not merely contemplated and (2) that the object of the relief by way of injunction is to prevent the multiplicity of suit. Injunction prayed for in a suit for possession under Section 6 of the Specific Relief Act restraining the opposite party from interfer ring with possession can be maintained as has been held in the case of Mart Dodda Tomma v. Santaya, AIR 1922 Bom 216. Injunction prayed for in a suit for possession under Section 6 of the Specific Relief Act restraining the opposite party from interfer ring with possession can be maintained as has been held in the case of Mart Dodda Tomma v. Santaya, AIR 1922 Bom 216. On the other hand, it was held in the case of Mahadei Kunwar v. Babu Rani, 50 1c 180, that where an application is made by a party to a suit to restrain execution in its entirety, the applications is not maintainable in view of Section 41 (a) of the Specific Relief Act. 7. ON the other hand, clause (b) lays down the rule that no Court can by an injunction restrain the proceeding pending in another court which is not subordinate to it. Injunction of stay proceedings can only be granted in cases where the court in which the proceeding ought to be stayed is subordinate to that court in which injunction is sought vide Municipal Board, Meerut v. Sir Singh, AIR 1965 All 527 . In the case of Venkatasa v. Ramaswami, ILR 18 Mad 338, it was held that in a suit to restrain the defendant from executing the decree obtained from the same court, no injunction could be granted in view of Section 41 (b). In the case of Ram Sudan (supra), it was observed: "my own view is that the prohibition operates only in respect of courts which are not subordinate in the sense that they are co-ordinate or superior and not in respect of court itself which must always be taken as competent to recall its proceedings. Every court of justice has an inherent jurisdiction to control itself from abuse of its own procedure and to stay proceedings which are manifestly perverse or vexatious. " 8. THEREFORE, it appears that the proposition propounded by Mr. Dhruva Narayana is not an absolute proposition. There is scope of distinction as has been observed above with regard to the applicability of Section 41 (a) and (b ). THEREFORE, it would not be necessary to decide the said question and it is also not within the scope and ambit of the present revision. I, therefore, refrain from deciding the said question at this stage and keep it open for reagitation at; appropriate stage. THEREFORE, it would not be necessary to decide the said question and it is also not within the scope and ambit of the present revision. I, therefore, refrain from deciding the said question at this stage and keep it open for reagitation at; appropriate stage. Therefore, at the moment, it is not possible to decide where the in junction granted on 1st January, 1990 was void and non-est by reason of U. P. Amendment of Order XXXIX, Rule 2, C. P. C. It has also been brought to my notice that the said proviso as amended by U. P Amendment Act 57 of 1976 has since been repealed and omitted subsequent to 19th February, 1990 viz; by U. P. Civil Laws (Amendment) Act, 1991 (U. P. Act 17 of 1991 with effect from 15th January, 1991). What would be the effect of such repeal or omission on the pending proceeding is also a matter which is not required to be gone into at the present situation. These questions are advisable to be kept for reagitation at appropriate time and stage. 9. THEREFORE, at the moment, I am unable to agree with the contention of Mr. Dhruva Narayana that the order dated 1st January, 1990 was rightly vacated suo motu by the learned Munsif on 19th February, 1990. In my view, even if such an order is passed, though it can be termed "say for argument sake", that the order is void, even then it cannot be treated so by the litigant and no disrespect could be shown to such an order unless the same is so declared when the fact is brought to the notice of the Court by means of an application by the other side disclosing the grounds on which the order is void and it is held and declared by the Court after hearing the objection that might be taken by the other side. It is not desirable that such a declaration should be made or the injunction should be vacated, after it is granted by the Court either suo motu or in absence of other side without giving him opportunity of filing objection. 10. IN the present case, it appears that no application for vacating the interim order was filed. Therefore, there was no ground disclosed. 10. IN the present case, it appears that no application for vacating the interim order was filed. Therefore, there was no ground disclosed. The Court had proceeded suo motu and that too on a date neither fixed nor there was any application for putting up and when no opportunity was given to the other side. Thus the order dated 19th February, 1990 cannot be sustained and, as such, the same has been rightly set aside by the learned Additional District Judge. 11. THAT apart, from the injunction dated 1st January, 1990 passed in Original Suit No. 6 of 1990, another order of injunction granted in Misc. Case No. 45 of 1988 arising out of Original Suit No. 178 of 1986 was operating, till 10th May, 1990. Good, bad or indifferent whatever might be the said injunction the same was still valid and operating. Therefore, even if for argument's sake, we accept that the order dated 1st January, 1990 passed in Original Suit No. 6 of 1990 was rightly vacated by order dated 19th [February, 1990, still then the possession could not be obtained by the petitioner by reason of the subsistence of the interim order granted in Misc. Case No. 45 of 1988. 12. THEREFORE, again on account of such a situation, the taking of possession by the petitioner has the effect of violation of an interim order still subsisting. The learned Counsel for the petitioner Mr. Dhruva Narayana con tended that in such a case, the appropriate remedy is provided under Order ' XXXIX, Rule 2-A, C. P. C. There cannot be any order for restoration of possession. He further contended that in the plaint both in Original Suit No. 178 of 1986 and Original Suit No. 6 of 1990, no cause of action was disclosed and, therefore, the plaint should have been rejected under Order VII, Rule 11, C. P. C. because it appears from the statement made in the plaint but it was barred by law. Such a contention also cannot be a ground for either vacating the interim order or for vacating injunction. The under Order VII, Rule 11, C. P. C. can be exercised by the Court and for that necessary orders are to be passed. Unless there are such orders passed, it cannot be presumed that the injunction granted is non-est. Such a contention also cannot be a ground for either vacating the interim order or for vacating injunction. The under Order VII, Rule 11, C. P. C. can be exercised by the Court and for that necessary orders are to be passed. Unless there are such orders passed, it cannot be presumed that the injunction granted is non-est. Such a contention cannot be accepted in view of the feet that in case> - any Injustice Has been committed by reason of an error on the part of the Court, it was incumbent on the Court to undo such injustice and correct the same by restoring such possession. In the case of Mool Raj v. Murt Raghunath Ji, AIR 1967 SC 1386 , it was held that when the executing court delivers possession to the decree-holder after execution being stayed by the ap pellate court out before the stay order being communicated to the executing court the possession to judgment-debtor may be restored. However it is an established law that Court has inherrent power to grant restoration even where Section 144, C. P. C. in terms does not apply. [see Rajjab Ali v. Faku, 35 CWN 483]. The duty of the Court is to place the parties is in the position which they would have occupied but for the act of the Court. [see Naren v. Binod 54 CWN 896]. Therefore, which they would have occupied but for the act of the Court. [see Naren v. Binod (supra)]. Therefore, it cannot be said that the order passed by the learned District Judge in the present facts and circumstances directing restoration is without jurisdiction. 13. IN the given facts and circumstances of the present case which is peculiar in its nature, namely, that the opposite party had instituted another suit though they had claimed their title from the said Shahzadi who had filed Original Suit No. 178 of 1986 which also stands withdrawn, instead of getting themselves substituted in the said suit under Order XXII, Rule 10, C. P. C. and the fact that they have already been dispossessed, it is desirable in order to prevent multiplicity of proceedings and avoid consecutive reversal of the situation, that the operation of the order directing restoration of possession be remained stayed for a period till one month after the injunction matter is decided afresh. The order dated 7th December, 1994 passed by the learned Additional District Judge Vth Court, Bijnor shall be modified to the extent indicated below. 14. THAT the learned Munsif shall hear the injunction matter afresh on the basis of such objection or application for vacating the interim order that might be filed by the petitioners who shall file such application within a period of three weeks from date along with a copy of this order within a period of four weeks from the date of such filing in accordance with law, without being influenced by any observations made in this judgment which are tentative in nature for the purpose of deciding the present revision application, as early as possible without granting any adjournment unless it is exceptionally unavoidable. In case the petitioners succeed in getting interim order vacated, in that event, their possession shall be maintained. In case the opposite parties succeed in maintaining the interim order, in that event, the pos session should be restored. The learned Munsif shall also make an endeavour to dispose of the main suit as expeditiously as possible preferably within a period of one year from the date of production or certified copy of this order as aforesaid. The parties do undertake through their learned Counsel that they will co-operate in the early disposal of the suit and shall not take any un necessary adjournment. This petition is thus disposed of. There will, however, be no order as to costs. Petition disposed of.