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2001 DIGILAW 899 (MP)

Parvat v. Gurucharansingh

2001-12-03

S.B.SAKRIKAR

body2001
ORDER 1. The appellant (original plaintiff) has directed this appeal against the order dated 9.6.2001 passed by the 1st Appellate Court in Civil First Appeal No. 12A/99, thereby allowing the application filed on behalf of respondent No.4 Ghisa seeking injunction against the present appellant from taking possession of the disputed land in execution of the order passed by SDO, Dewas, dated 30.3.2001 in case No. 8/B-121/98-99, u/o 39 R. 1 & 2 read with section 151 of the CPC. 2. Brief facts for the disposal of this appeal in short are that the present appellant Parvat filed a suit in the Court of II Civil Judge, Class I, Dewas for declaration, possession and injunction against the respondents with regard to agricultural land situated in village Janoikhedi bearing Survey No. 96, area, 6.50 acres. The said suit, after full adjudication, was decreed in favour of the appellant-plaintiff by judgment and decree dated 31.3.1999. Respondents 1 to 4 aggrieved by the said judgment and the decree of the Civil Judge Class I, Dewas, filed Civil Appeal No. 12A/99, in the Court of III ADJ, Dewas. Alongwith the appeal, they have also filed application u/o 41 R. 5, CPC, for staying the execution of the decree passed by Civil Judge Class I, in favour of the present appellant Parvat. The learned ADJ, Dewas, by order dated 23.4.1999 allowed the said application and specifically directed that the execution of delivery of possession of the suit land i.e. Survey No. 96, area 6.50 acres of village Janoikhedi shall remain stayed upon appellants furnishing a security to the tune of Rs. 10,000/- to the satisfaction of the trial Court before the said Court. The said stay order was subsequently confirmed during the pendency of the appeal. 3. During the pendency of the respondents' appeal, the learned SDO, Dewas in some proceedings pending before him passed order dated 30.3.2001 and directed delivery of possession of the suit land to plaintiff-appellant Parvat from respondent Gurucharansingh. In view of the aforesaid order of the SDO, the present appellant-plaintiff tried to take possession of the suit land from the respondents. As such, an application was filed on behalf of the respondents No. 1 to 4 (appellants in Second Appeal) for restraining the appellant from taking possession of the suit land under the garb of order dated 30.3.2001 passed by SDO, Dewas in his favour. As such, an application was filed on behalf of the respondents No. 1 to 4 (appellants in Second Appeal) for restraining the appellant from taking possession of the suit land under the garb of order dated 30.3.2001 passed by SDO, Dewas in his favour. The learned ADJ, on considering the said application for grant of injunction, allowed the application and granted injunction exercising powers u/s 151 of the CPC in favour of respondents 1 to 4 and against the appellant. Aggrieved by the said order of injunction, the appellant has filed this appeal. 4. The only contention of the LC for the appellant is that the 1st Appellate Court is not competent to pass an order of injunction as impugned exercising powers u/s 151 of the CPC. He also contended that the civil Court has no jurisdiction to issue order of injunction, restraining appellant from executing the order which was not passed by the Courts subordinate to it but by the Revenue Court in some proceedings under M.P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumiheen Hadpane Sambandhi Kuchakron Se Paritran Thatha Mukthi Adhiniyam 1976. A reliance was placed on the decision of the Apex Court in case of Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. and others [ AIR 1983 SC 1272 ]. 5. As against this, LC appearing for respondents 1 to 4 submitted that as the trial Court has passed a decree of declaration and possession in favour of the plaintiff-appellant with regard to the disputed property, it is not disputed that the appellant-plaintiff was not in possession of the suit land. The LC also invited my attention to the order dated 23.4.1999 passed by the 1st Appellate Court in Civil Appeal No. 14A/99 (New No. 12A199), thereby staying the execution of delivery of possession of the suit land in favour of the plaintiff. The said order of stay is operative and the 1st Appeal is pending. LC submitted that during the pendency of the 1st Appeal, the appellant-plaintiff tried to take possession of the suit land in execution of the alleged order dated 30.3.2001 passed by SDO, Dewas in Case No. 8B-121/98-99. As such, he filed an application before the appellate Court, restraining appellant-plaintiff from taking possession during the pendency of his appeal. LC submitted that during the pendency of the 1st Appeal, the appellant-plaintiff tried to take possession of the suit land in execution of the alleged order dated 30.3.2001 passed by SDO, Dewas in Case No. 8B-121/98-99. As such, he filed an application before the appellate Court, restraining appellant-plaintiff from taking possession during the pendency of his appeal. In view of the provisions of Order 39 R. 1, 2 CPC, the order of injunction as prayed, could not be passed, therefore, for ends of justice, the appellate Court, exercised inherent powers and passed the impugned order for which the Court was competent. The counsel submitted that in view of the peculiar facts and circumstances of the present case, the impugned order of the 1st Appellate Court cannot be considered to be illegal and without jurisdiction, requiring any interference in this appeal. 6. Considering the submissions of the LC for the parties and on perusal of the impugned order as also the record of the case, I do not find that the 1st Appellate Court has committed any illegality or jurisdictional error in passing the impugned order, restraining the plaintiff-appellant from taking possession of the suit land during the pendency of the 1st Appeal under the garb of the order of SDO, Dewas dated 30.3.2001. It is pertinent to note that the said order of the SDO, Dewas subsequently set aside by the Collector Dewas in Appeal No. 14 of 2000-2001, by order dated 30th July, 2001. It is true that when some specific provision is available in the CPC for the particular purpose, normally, the Court should not exercise inherent powers. But in this case, as there is a complete prohibition contained under the provisions of O. 39 R. 2 proviso (added by M.P. Amendment), the injunction under the provisions of O. 39 was not possible. As such, the Court exercised inherent powers to protect its own order of stay granted during the pendency of the appeal against the delivery of possession of the suit land. As such, it cannot be said that the Court has acted without jurisdiction and the order is illegal as not in accordance with the law. 7. Consequently, this appeal being devoid of any merit and substance, filed on behalf of the appellant, fails and it is accordingly dismissed: The impugned order of the 1st Appellate Court stands affirmed. No orders as to costs.