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2010 DIGILAW 743 (GAU)

Kshitish Nandi v. Manada Dhar & Ors.

2010-09-18

H.BARUAH

body2010
H.Baruah,J.:- In this revision order dated 28.7.2010 passed by Additional District Judge, North Tripura, Dharmanagar in Civil Misc. Appeal No. 2 of 2010 has been assailed, whereby and whereunder the order dated 31.5.2010 passed in Misc. Case No. 15 of 2010 by the Civil Judge, Jr. Division, North Tripura, Dharmanagar has been upheld. By order dated 31.5.2010 Civil Judge, Jr. Division, Dharmanagar, North Tripura refused to grant temporary injunction in favour of the petitioner herein preferred under Order 39 Rule 1 & 2 of the Civil Procedure Code (for short CPC). 2. The factual matrix in a short campus can be stated as under: The predecessors-in-interest of the respondents herein as plaintiffs instituted Title Suit No. 10 of 1979 in the Court of Sub-Judge, Dharmanagar to obtain a decree for recovery of possession of the suit land described in the plaint. The trial Court after due trial decreed the suit in favour of the predecessors-in-interest of the respondents. Being aggrieved, the judgment debtor preferred an appeal and on dismissal of the said appeal, the judgment debtor approached the High Court by filing a Second Appeal which too resulted dismissal. Since no SLP had been filed before the Apex Court the judgment and decree passed by the High Court attained finality. The respondents herein being the legal heirs of then plaintiffs filed an execution case for execution of the decree which attained finality. The said execution case was registered as Ex.(T) No. 18 of 2001. During the pendency of the execution case as indicated above, on 17.9.2007, the petitioner herein purchased a portion of the decreetal land measuring .003 acres from Sri Ajit Rn. Dhar @ Hira Dhar, respondent No. 9 herein by registered sale deed at a consideration of Rs. 90,000/- and on such purchase the petitioner herein stepped into the shoes of the decree holder in respect of land measuring .003 acres. The petitioner having stepped into the shoes of the decree holder filed an application under Order 21 Rule 16 CPC on 5.5.2008 which was dismissed on 11.5.2010 by the executing Court on the ground that there was no scope for re-examination of the issue raised in the application filed under Order 21 Rule 16. 3. Being aggrieved thereby the petitioner approached this Court by filing a Civil Revision Petition being No. 28 of 2008 whereunder the order dated 11.5.2010 had been challenged. 3. Being aggrieved thereby the petitioner approached this Court by filing a Civil Revision Petition being No. 28 of 2008 whereunder the order dated 11.5.2010 had been challenged. This Court by order dated 10.8.2010 allowed the revision with the following direction: "while disposing of the application under Order XXI Rule 16 CPC the Executing Court should also take note of the fact that the present petitioner filed a partition suit relating to the part of the decretal land which is pending before the learned Civil Judge, Jr. Division, Dharmanagar. It is made clear that while considering the aforesaid application, the Executing Court should not be influential by this order, it should pass order on application dated 05.05.2008 in accordance with law, and till the order is passed in the said application, the execution proceeding so far as relating to the alleged purchased decreetal land measuring 0.003 acres, which is the subject matter of the aforesaid petition, shall remain stayed." From the above direction it can be noticed that this Court directed disposal of the application filed under Order 21 Rule 16 of the CPC in accordance with law and till such disposal, the execution proceeding was directed to be remained stayed. 4. The petitioner herein, having stepped into the shoes of the decree holder by virtue of purchase of a portion of decreetal land by a registered sale deed from the respondent No. 9 herein and on refusal to partition the suit land by the respondents herein; had filed a partition suit being No. TS(P) 5 of 2010 alongwith an application under Order 39 Rule 1 & 2 seeking grant of temporary injunction against the respondents, upon taking resort to the ratio laid down in the case between Jagdish Dutt & Anr. Vs. Dharam Pal & Ors., reported in (1999) 3 SCC 644 . The said application under Order 39 Rule 1 & 2 read with Section 151 CPC was registered as Misc. Case No. 15 of 2010. The trial Court being satisfied granted ad-interim injunction but injunction was later vacated by an order dated 31.5.2010 after hearing the parties. An appeal was filed being No. 2 of 2010 against the order dated 31.5.2010 passed by the trial judge in the Civil Misc. Case No. 15 of 2010. The trial Court being satisfied granted ad-interim injunction but injunction was later vacated by an order dated 31.5.2010 after hearing the parties. An appeal was filed being No. 2 of 2010 against the order dated 31.5.2010 passed by the trial judge in the Civil Misc. Case No. 15 of 2010 before the Court of Additional District Judge, Dharmanagar who after hearing both the parties upheld the impugned order dated 31.5.2010 passed by the trial Court. Rejection of the application thereby resulted this Civil Revision Petition which is presently before us. 5. Mr. K. N. Bhattacharjee, learned Sr. counsel at the very threshold of his argument submitted that the petitioner herein being deprived of his share which had been purchased from the respondent No. 9, one of the decree holders, has filed the partition suit being No. T.S. (P) 5 of 2010 for partition of the suit land for enjoyment of (he same by him. It was also argued that by virtue of such purchase thepetitioner stepped into the shoes of the decree holders and, therefore, he bad the right to take resort to the provision of Order 21 Rule 16 CPC which however, had been rejected by the trial Court which compelled the" petitioner to approach the Court by way or revision petition being No. CRP 28 of 2008 which had been disposed of by judgment and order dated 10.8.2010 wherein the executing Court was directed to dispose of the application filed by the petitioner under Order 21 Rule 16 and until disposal directed stayal of the execution proceeding. Mr. K. N. Bhattacharjee in support of this revision petition took assistance of the ratio laid down in the Jagdish Dutt's case (supra) wherein it has been held where a decree in favour of a joint family is passed and during execution of decree if a transfer is a made by a coparcener in respect of his interest in the subject matter of the decree in favour of the judgment debtor, the decree is extinguished to the extent of the transferor's interest. Decree can be executed only in respect of the remaining part of the subject matter. In paragraph-? of the judgment, the Apex Court held as under: "7. Decree can be executed only in respect of the remaining part of the subject matter. In paragraph-? of the judgment, the Apex Court held as under: "7. When a decree is passed in favour of a joint family the same has to be treated as a decree in favour of all the members of the joint family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be,in respect of any one portion of the property, decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property. A joint decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing Court cannot find out the shares of the decree holders and dispute between joint decree holders is foreign to the provisions of Section 47, CPC. Order XXI, Rule 15, CPC enables a joint decree holder to execute a decree in its entirety but if Vvhole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Order XXI, Rule 15, CPC enables a joint decree holder to execute a decree in its entirety but if Vvhole of the decree cannot be executed, this provision cannot be of any avail. In that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto. Various decisions cited by either side to which we have referred to do not detract us from the principle stated by us as aforesaid. Therefore, a detailed reference to them not required." 6. It was argued by Mr. K. N. Bhattacharjee that since the petitioner stepped into the shoes of the decree holder, being the purchaser of a portion of the subject matter of the decree passed in Title Suit No. 10 of 1979, which however attained finality, to secure his share no other option lied with him than to file a partition suit before the appropriate forum and accordingly in order to prevent his eviction therefrom illegally he also prayed for grant of temporary injunction against the respondents herein. Therefore, the right so acquired in the land purchased by him cannot be denied and such right accrued thereto was sought to be achieved by filing the partition suit. The learned Trial Judge as well as the First Appellate Court failed to assess the facts and circumstances of the case and the ratio laid down in the case of Jagdish Dutt (supra) and thus erroneously and illegally dismissed the application under Order 39 Rule 1 and 2 of the CPC. 7. It is true that a portion of the decreetal land measuring 0.003 acres had been purchased by the petitioner from the respondent No. 9 herein by virtue of a registered sale deed during pendency of the execution proceeding. Now, the issue that can be raised is whether such a purchase could be made in respect of a decreetal land when the execution proceeding was on. Mr. K. N. Bhattacharjee on this issue submitted that the Principle of lis pendens would not be operative and he in support of his contention also relied in the decision reported in AIR 1983 SC 124 : Khemchand Shankar Choudhary & Anr. Vs. Vishnu Hari Patil & Ors. In paragraph 6 of the judgment the Supreme Court held as under: "6. K. N. Bhattacharjee on this issue submitted that the Principle of lis pendens would not be operative and he in support of his contention also relied in the decision reported in AIR 1983 SC 124 : Khemchand Shankar Choudhary & Anr. Vs. Vishnu Hari Patil & Ors. In paragraph 6 of the judgment the Supreme Court held as under: "6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendent lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such atransferee is a representative in interest of the party from whom he has acquired that interest. ********** A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Civil Procedure Code advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendent lite the matter has got to be referred back to the Civil Court even though there may be no dispute about the succession. devolution or transfer of interest. *******" 8. Relying on the ratio laid down by the Apex Court in the case of Nagubai Ammal Vs. B. Sharma Rao; reported in AIR 1956 SC 593 , a Division Bench of Calcutta High Court while deciding the case of rabindra Nath Das Vs. Sarat Chandra Parui, reported in AIR 1971 Calcutta 159 held that Section 52 of the Transfer of Property Act is not intended for protection of transferor rather it is intended for protection of the other party in the suit. Sarat Chandra Parui, reported in AIR 1971 Calcutta 159 held that Section 52 of the Transfer of Property Act is not intended for protection of transferor rather it is intended for protection of the other party in the suit. In the case (supra) it can be noticed that a suit was instituted by a party for specific performance of an agreement of reconveyance of immovable property; and during the pendency of the suit the right of the party under the agreement was sold in auction in execution of a rent decree against the party and was purchased by the defendant in the suit and it was held that the party cannot claim the property by applying the doctrine of lis pendens. In paragraph-4 of the judgment, the Division Bench of the Calcutta High Court held as under: "4. In our view, however, the above reasoning would not be sound. The doctrine of lis pendens cannot be availed of by the transferor and it is really intended for the protection of the other party, that is, the party in the suit other than the transferor, (vide Shyam Lal Vs. Sohan Lal, ILR 50 Ali 290: AIR 1928 All 3) and Jogesh Chandra Mondal Vs. Tarulata Ghosh, (1956) 60 Cal WN 1089. See also the decision of the Supreme Court, reported in Nagubai Ammal Vs. B. Sharma Rao, AIR 1956 SC 593 , which substantially supports this view). The plaintiff, therefore, cannot take advantage of this doctrine and it cannot aid him or operate to his benefit. The admitted position is that the plaintiff has lost his right under the agreement in question, on which his claim for relief in the instant suit was based. He has, accordingly, been non-suited and has no longer any locus standi to maintain or continue the present suit." 9. Mr. K. N. Bhattacharjee, learned Sr. Counsel appearing for and on behalf of the revision petitioner taking recourse to the decision rendered by the Division Bench of the Calcutta High Court in the case (supra) strenuously argued that the right of the respondent No. 9 herein, the transferor of the land measuring 0.003 acres can never be protected by applying the doctrine of lis pendens rather protects the interest of the other party in the suit other than the transferor. The petitioner herein being the purchaser of the land measuring 0.003 acres sold by the respondent No. 9 has the interest in the land and it cannot be forbidden or in other words taken away on account of purchase of the land during the pendency of the execution proceeding. Mr. K. N. Bhattacharjee, therefore submitted that the revision petitioner herein has the interest in the land by virtue of purchase and has prima facie case in his favour which ought to have been accepted by the learned Courts below while exercising jurisdiction under Order 39 Rule 1 & 2. It was also submitted by him that he being the purchaser of the land as. indicated above from the respondent No. 9 and when he has filed a suit for partition this facts clearly reveal a prima facie case in favour of the petitioner herein. The reasoning that has been offered by the Courts below in the facts situation would not be appreciable while exercising jurisdiction under Order 39 Rule 1 and 2 of the CPC. 10. In the context of existence of prima facie case in favour of the petitioner it was also argued that the learned Courts below committed error and illegality in overlooking the facts appearing in the face of the pleadings of the partition suit. The petitioner during the pendency of the execution proceeding purchased the aforesaid piece of land from respondent No. 9 herein by a registered sale deed which was/is used as a pathway to the residential building of the petitioner herein. In such a situation the petitioner remains within the jurisdiction to institute a suit for partition by applying the ratio laid down in Jagdish Dutt's case (supra). The petitioner herein while filing the suit for partition also filed an application under Order 39 Rule 1 and 2 praying grant of temporary injunction for restrainment of the respondents, the defendants in the partition suit from evicting him by virtue of the decree passed in Title Suit No. 10 of 1979, though the trial Court initially granted the temporary injunction. Subsequently after filing of objection and hearing the parties the trial Court was pleased to vacate the order of temporary injunction which actuated the petitioner to approach the appellate forum challenging the legality and correctness of the order. However, the appellate Court also delivered a judgment maintaining the order passed by the trial Court. Subsequently after filing of objection and hearing the parties the trial Court was pleased to vacate the order of temporary injunction which actuated the petitioner to approach the appellate forum challenging the legality and correctness of the order. However, the appellate Court also delivered a judgment maintaining the order passed by the trial Court. It was argued by Mr. K. N. Bhattacharjee hat both the Courts below failed to assess the facts situation appearing in the plaint and erroneously arrived at an finding that temporary injunction could not be granted in favour of the petitioner. While exercising jurisdiction under Order 39 Rule 1 & 2, Courts are to look into three principles which are termed as golden principles while dealing with an application under Order 39 Rule 1 & 2. Courts are to see whether the pleadings and the grounds contended in the application are sufficient to record a prima facie case in favour of the applicant. Courts are also to see whether there is balance of convenience in favour of the applicant. Courts are also to see which party would suffer irreparable loss and injury if injunction is granted or refused. If the Courts find while dealing with the application under Order 39 Rule 1 and 2 that all the three principles co­exist it would be imperative on the part of the Courts to grant injunction in favour of the applicants). If the three principles do not exist in favour of the applicant(s) Courts would be within the jurisdiction to dismiss the application under Order 39 Rule 1 & 2 of CPC. 11. According to Mr. K. N. Bhattacharjee, the trial Court and the appellate Court refrained from discussing any of the principles on the facts situation that placed before it. It failed to assess whether there is prima facie case in favour of the petitioner and also failed to assess whether the balance of convenience is in the favour of the petitioner or the adversary party. It also failed to see which of the party would suffer irreparable loss if injunction is granted or refused. The dismissal of the application merely on the ground that the petitioner has filed a partition suit to frustrate the execution of the decree passed in Title Suit No. 10 of 1979 only is not appreciable. 12. Mr. It also failed to see which of the party would suffer irreparable loss if injunction is granted or refused. The dismissal of the application merely on the ground that the petitioner has filed a partition suit to frustrate the execution of the decree passed in Title Suit No. 10 of 1979 only is not appreciable. 12. Mr. K.N. Bhattacharjee, in support of his contention in regard to exercise of jurisdiction under Order 39 Rule 1 & 2 relied on the decision reported in AIR 2001 SC 2367 : Anand Prasad Agarwalla Vs. Tarkeshwar Prasad & Ors. In the case (supra) the Apex Court held that the sale certificate has legal validity and force unless set aside or declared to be nullity and therefore the possession of the purchaser i.e. the respondent cannot be said to be a trespasser, injunction restraining auction sale of the mortgaged property can be granted. It also held that Court cannot hold mini trial at the stage of grant of temporary injunction by examining various aspects of the case under which sale certificate had been issued. In paragraphs-4 and 6 the Apex Court held as under: "4. In the appeals, the Division Bench analysed the matter and is of the view that the property which had been brought to sale pursuant to a decree passed in favour of Bihar State Finance Corporation appears prima facie to have been purchased by the respondents. A sale certificate had been issued in this regard which was subsequently amended to include within its fold the entire disputed land and record of rights indicating the possession of land with the respondents. The Appellate Court felt that serious questions had been raised for consideration in the course of the suit and therefore there was a prima facie case for consideration. Particularly the sale certifcate that had been issued indicated that the appellant had purchased the properties in the auction sale. A presumption arose in favour of that possession pursuant to the records of rights. On that basis the Division Bench held that the temporary injunction should be granted subject to certain conditions. Hence these appeals. 6. It may not be appropriate for any Court to hold mini trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Hence these appeals. 6. It may not be appropriate for any Court to hold mini trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser. The claim of the contesting respondents is in their own right. The decisions referred to by the learned counsel for the appellant are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents. In these circumstances, we dismiss these appeals. We may notice that the time bound directions issued by the Division Bench will have to be adhered to strictly by the parties concerned and the suits should be disposed of at an early date but not later than six months from the date of the communication of this order." In our present case we have come across that the petitioner is the purchaser of a plot of land measuring 0.003 acres and such piece of land was purchased from respondent No. 9 herein, one of the decree holders of Title Suit No. 10 of 1979. It is also true that the land measuring 0.003 acres is a parcel of the decreetal land. The petitioner, therefore, being the likelihood of irreparable injury and as to the purchaser of the land as indicated above the balance of convenience in favour of approached the decree holders for partition granting temporary inj unction, then there can but prayer for partition had been refused which be no difference between such a case and a compelled him to file a partition suit against case in which there is no decree already in the respondent along with an application under existence. Mr. K. N. Bhattacharjee, thus, Order 39 Rule 1 & 2 CPC. Mr. K. N. Bhattacharjee, thus, Order 39 Rule 1 & 2 CPC. These aspects of taking aid of the decision of this Court in the the matter according to Mr. K.N. case (supra) contended that the purchaser Bhattacharjee, learned Sr. Counsel were not being stepped into the shoes of the decree taken into consideration by the Courts below, holder by virtue of purchase of a parcel of Though the land had been purchased during the decreetal land from respondent No. 9, the pendency of the execution case, such one of the decree holders, right accrued to purchase cannot obliterate by the principle of him in respect of the land and therefore, he lis pendens. According to Mr. Bhattacharjee, filed a partition suit seeking partition of the these facts though conjointly gave rise a prima land purchased by him from the respondent facie case in favour of the petitioner, the same No. 9 from the remaining land under the were not considered and on the ground decree. indicated in the order refused to grant 14. According to Mr. K.N. Bhattacharjee, temporary injunction in favour of the petitioner, learned Sr. Counsel even in spite of existence According to Mr. Bhattacharjee all the three of these facts refusal to grant temporary golden principles necessary for dealing with injunction, against the respondents herein, the injunction are in favour of the petitioner, he defendants in the partition suit by the trial being the purchaser of the suit land measuring Court as well as the appellate Court is not 0.003 acres a parcel of the decreetal land. It appreciable and both the Courts below was also argued by him that neither of the committed error and illegality by not providing Courts below was right in rejecting the the same to the petitioner. Mr. K. N. application under Order 39 Rule 1 & 2 CPC. Bhattacharjee, therefore, contended that all 13. Mr. K. N. Bhattacharjee, in support the three principles being available in favour of his contention, also placed reliance in the of the petitioner, an inj unction could have been case of Tazmul Ali & Ors. Vs. Md. Ulairaja; granted in favour of the partition restraining reported in AIR 1978 Gauhati 56. In the case the respondents/defendants from evicting him this High Court held that temporary injunction from the parcel of the land purchased by him. can be granted if conditions requisite for the 15. Mr. Vs. Md. Ulairaja; granted in favour of the partition restraining reported in AIR 1978 Gauhati 56. In the case the respondents/defendants from evicting him this High Court held that temporary injunction from the parcel of the land purchased by him. can be granted if conditions requisite for the 15. Mr. A.M. Lodh, learned Sr. counsel grant of the same are satisfied. It cannot, for the respondents per contra to the however, be denied just because there is submissions advanced by Mr. K. N. existence of a decree in favour of the Bhattacharjee, learned Sr. counsel vehemently defendant. It also held that the circumstances argued that Section 115 of the CPC and that there is a decree in favour of the Article 226 of the Constitution of India are defendants only makes it more difficult for the the pari materia and therefore, while exercising plaintiff to establish prima facie case. But if jurisdiction under Article 227 of the he does so and also satisfies the Court as to Constitution, High Court cannot travel beyond the provisions of Section 115 of the Code of Civil Procedure. It was argued that the High Court in exercise of power under Section 115 of the CPC may call for the records of any case which has been decided by any Court subordinate to it and in which no appeal lies thereto, if it appears to it that the subordinate Court exercised its jurisdiction not vested in it by law or failed to exercise its jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity. Under the three above circumstances, the High Court may interfere with the order, judgment passed by the subordinate Court while exercising jurisdiction under Section 115 of the CPC. However, the High Court while exercise such jurisdiction under this section cannot vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or proceedings. So this section put a restriction while exercising jurisdiction under this section saying that it (High Court) cannot vary or reverse any order or finding of an issue in course of the suit or other proceedings. Mr. So this section put a restriction while exercising jurisdiction under this section saying that it (High Court) cannot vary or reverse any order or finding of an issue in course of the suit or other proceedings. Mr. Lodh, therefore, contended that even an illegal decision of an issue pertaining to the suit or an order, unless the three conditions exist as contained in clause (a) (b) (c) of sub-section 1 of Section 115 CPC such decision cannot be interfered with. Mr. Lodh in support of his contention relied on the decision reported in the case between Sher Singh (dead) through LRs Vs. Joint Director of Consolidation & Ors.; reported in AIR 1978 SC 1341 , wherein in paragraph 6 of the judgment the Apex Court held as under: "6. As the above section is in pari material with Section 115 of the Civil Procedure Code, it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate Courts. If a subordinate Court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction under Section 115 of the Civil Procedure Code to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself." 16. Further Mr. A. M. Lodh, learned Sr. counsel inviting the attention of this Court to the judgment and order dated 10.08.2010 passed in CRP No. 28 of 2008 by this Court contended that this Court was pleased to stay the execution proceeding pending before the executing Court until disposal of the application under Order 21 Rule 16 of the CPC and in that view of the matter there was no reason on the part of the petitioner to apply to the trial Court for grant of temporary injunction under Order 39 Rule 1 & 2. It was argued by Mr. A.M. Lodh, learned Sr. It was argued by Mr. A.M. Lodh, learned Sr. counsel that on account of stayal of the execution proceeding by this Court vide the order as indicated above, the application under Order 39 Rule 1 & 2 of the CPC would not be maintainable. 17. Taking note of the submissions advanced by Mr. A.M. Lodh, learned Sr. Counsel, Mr. K. N. Bhattacharjee, learned Sr. counsel for the petitioner submitted that an injunction can also be granted in favour of the petitioner against the defendants in partition suit, the respondents herein until disposal of the application under Order 21 Rule 16 of the CPC in view of the law laid down by this High Court in the case of Tazmul Ali & Ors. (supra). 18. Article 227 of the Constitution gives power to the High Court of superintendence over all Courts under its jurisdiction. Under this Article High Court can interfere in the following cases: (a) Erroneous assumption or excess of jurisdiction, (b) Refusal to exercise jurisdiction, (c) Error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction, (d) Violation of the principles of natural justice, (e) Arbitrary or capricious exercise of authority, or discretion, (f) Arriving at a finding which is perverse or based on no material. (g) A patent or flagrant error in procedure, (h) Order resulting in manifest injustice. Thus the High Court in exercise of power under Article 227 of the Constitution can quash an order and also issue further direction which may not be available in a proceeding under Section 226 of the Constitution that is to make further inquiries after taking evidence or to dispose of the matter according to law. It was consistently argued by Mr. K.N. Bhattacharjee, learned Sr. counsel that despite materials available before the Courts below sufficient to act under Order 39 Rule 1 and 2, the learned Court below refused to act as such and therefore, this Court in exercise of power under Article 227 can quash the order(s) passed by the Courts below and can remand the matter with a direction to dispose of the same in accordance with law. This Court does not find any fault in the submission(s) advanced by Mr.. This Court does not find any fault in the submission(s) advanced by Mr.. K.N. Bhattacharjee in regard to exercise of power under Article 227 of the Constitution by this High Court while exercising power of superintendence over all Court by the High Court. 19. The facts involved in this case are summarily discussed whenever and wherever is necessary while writing this judgment and order. In the considered view of this case those facts are not considered properly in its true perspective rather overlooked by both the Courts below only on the simple ground that such an attempt is made only to frustrate the execution proceeding. The Court finds no reason to accept the findings of the Courts below. Therefore, in exercise of the power under Article 227 of the Constitution this Court is constrained to set aside the impugned judgment and order passed by both the Courts below. The matter is remanded back to the trial Court to dispose of the matter afresh in accordance with law within a period of two months after receipt of the copy of judgment and order. Parties are directed to appear before the trial Court within a period of 15 days from the date of the judgment and order. Send all records if taken from the Courts below. 20. Revision petition stands disposed of. No costs.