Certain citations on numbering of suits

 

Sl.No.	Case No.	Court	Judge	Gist of Judgment
1	C.R.P No.1869 of 2022   Jillellamudi Jagadeesh Versus Jillellamudi Subbayamma	HON'BLE AP HIGH COURT	HONOURABLE SRI JUSTICE SUBBA REDDY SATTI	At the stage of numbering the suit, the Court shall not conduct roving enquiry regarding the relief sought for in the Plaint.
2	C.R.P No.1270 of 2020. Dakshina Murthy vs Smt. Gnambika on 24 December, 2020	Telangana High Court	HON'BLE SRI JUSTICE A.RAJASHEKER REDDY	The truth or otherwise of the allegations made in Plaint cannot be gone into at the stage of numbering of the suit.
3	C.R.P.No.1209 of 2020                         Kade Kumara Swamy Vs Again Pandu	Telangana High Court	HON'BLE SRI JUSTICE A.RAJASHEKER REDDY	Before numbering the suit, Court cannot go into the merits of the matter without giving any opportunity to petitioner.
4	C.R.P No: 2729 of 2010 KUDUMULA KISHORE REDDY V/S KUDUMULA KRISHNA REDDY AND ORS Date of Decision: 20 July 2010 Citation: 2010 lawsuit(AP) 270	HIGH COURT OF ANDHRA PRADESH	Hon'ble Judges: Gopala Krishna Tamada	At scrutiny stage of the case, no court can appreciate merits of case and reject plaint on the ground that case of plaintiff is not well founded or devoid of any merits unless defect goes to root of matter
5	C.R.P. Nos. 4778 and 4867 of 2008 Decided On : Sep-11-2009 Reported in : 2009(6)ALT221 V. Hanya Naik and ors. Vs. M. Krishna Reddy and ors.	AP High Court	Hon’ble Judge : L. Narasimha Reddy	Maintainability of Suit for declaration as legal-heir without citing any defendant i.e., against whom so-ever and without seeking any further relief.
6	C.R.P NO.904 OF 2015     20-03-2015 Pujari Narsaiah  Vs Modem Sudhaker,	AP High Court	THE HONBLE SHRI JUSTICE SANJAY KUMAR	Court requiring the plaintiff to produce the originals thereof as a condition precedent for registration of the suit was erroneous in law.
7	C. R. P. 2478 Of 1993  Decided On, 13 February 1997  Linkwell Electronics Ltd., Vs. AP Electronics Development Corporation Ltd., 1997(3) ALD 336,	High Court of Andhra Pradesh	HONOURABLE. JUSTICE BHASKARA RAO	The Hon'ble High Court has observed that “as per clauses (a) to (i) of Or. VII, Rule 1 C.P.C do not contemplate that the deficit stamp duty, if any, on any document should be paid at the inception and it is also unnecessary to decide the nature of the document at this stage”. Therefore, the objection as to the admissibility of a document on the ground of deficit stamp duty can be taken only at the stage of the trial when the document is tendered in evidence
8.	C.R.P.No.632 of 2010  Decided On, 12 July 2010 Burra Anitha Vs. E. Mallavva, 2010 (6) ALT 128 ,.	High Court of Andhra Pradesh	THE HONOURABLE JUSTICE  G. BHAVANI PRASAD	An objection as to the admissibility of a document, at the stage of enquiry into an interlocutory application filed under Order 39 Rules 1 and 2 C.P.C., was raised, on the ground that it was improperly stamped and not registered. The trial Court took the view that the question as to admissibility of such document can be considered at the stage of hearing of the suit and it cannot be received in evidence, at the interlocutory stage. In the Revision, the Hon’ble High Court took the view that even at the interlocutory stage, an unstamped or improperly stamped document cannot be received in evidence
9	N. Jagannadham v. V. Mangamma, 1997 (2) ALD 549,	Andhra High Court	THE HONOURABLE JUSTICE B.S.A. Swamy,	Hon’ble High Court held that “if the party instead of requiring the document to be admitted in evidence merely wants the Court to send it to the Collector to be dealt with under Section 40 the Court has no option but to send it to the Collector as provided in Section 38 (2). The Court cannot compel the party to pay duty and penalty and have it admitted in evidence”
10	CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020 Judgment Pronounced on : 16.07.2021   Selvaraj & Ors., Vs Koodankulam Nuclear Power Plaint India Limited & Ors., [2021 (4) CTC 539	Hon’ble Madras High Court	CORAM: JUSTICE N.SESHASAYEE	The Registry Should Not Act As Defendant & Raise Objection At Pre Numbering Stage: Madras High Court.   To sum up, the Court may reject the plaint before numbering and entering it in the Register of Suits, if from a reading of the plaint, it is seen that the suit is barred by any law, or if it suffers from any procedural infirmity. The Court, at that stage, cannot and is not expected to conduct a roving enquiry into the merits of the matter by testing the correctness of the plaint- averments even prior to its institution. Further, for curing any of the permissible defects, no court shall return the plaint more than once.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

 

               

 

Simultaneous execution both against the property & person of the judgment-debtors is allowed under Order XXI, Rule 30 C. P. C.,

 Madras High Court

A.K. Subramania Chettiar vs A. Ponnuswami Chettiar on 13 November, 1956

Equivalent citations: AIR 1957 Mad 777

Author: Ramaswami

Bench: Ramaswami

JUDGMENT Ramaswami, J.

1. This appeal is preferred against the order of the learned Subordinate Judge of Coimbatore in E. P. R. No. 255 of 1954 in O. P. No. 162 of 1949.

2. This case brings forcibly to mind the dictum of their Lordships of the Privy Council in Court of Wards v. Maharajah Kumar Ramaput, 14 Moo Ind App 605 at p. 612 (A), that the woes of an Indian litigant begin only after he has obtained a decree.

3. The appellant before Us, judgment-debtor, Subramania Chettiar is the owner of 300 acres of land of which 30 to 40 acres are nanja lands and the annual rent is about Rs. 10,000/- to Rs. 15,000/-even according to himself. He admits that he also owns and goes about in a motor car. The decree-holder states that this judgment-debtor has got properties worth six to seven lakhs and gets an annual income of Rs. 40,000/- and also owns a motor car. R. W. 2, admittedly a relation of the judgment-debtor has admitted that the judgment-debtor owns lands worth six to seven lakhs of rupees and that he has got also a house.

It may be that the judgment-debtor is unduly depreciating his worth and the decree-holder is unduly exaggerating his worth. But there is sufficient evidence, however, to show that this judgment-debtor is a very well-to-do man indeed.

4. In these circumstances the respondent before us who has obtained a decree in O. S. No. 162 of 1949 against this appellant is seeking to execute it and has not been able to get his decree satisfied owing to the familiar tactics employed by the judgment-debtors to defeat and delay the decree-holders from realising the fruit of their decrees. The following tabular statement will establish this :

28-7-1951.

...

Preliminary decree in O.S. 162 of 1949 was obtained in the Sub-Court, Coimbatore.

19-12-1952.

...

Final decree for Rs. 32,984-4-8 was obtained.

30.1-1953.

...

E. P. NO. 34 of 1953 filed by the decree-holder for attachment and sale of his properties. (Then the judgment-debtor filed A. S. No. 53 of 1953 In the High Court against that decree and applied for stay of execu tion in C. M. P. NO. 5565 Of 1953).

31-7-1953.

...

In C. M. P. NO. 5563 Of 1953 the judgment-debtor was directed to deposit half the decree amount and furnish security for the other half within 8 weeks. The Judgment- debtor did not carry out the directions though time was extended twice by the High Court.

E. A. 1261 Of 1953 ...

In E. P. No. 34 Of 1953.

Filed by the judgment-debtor in the Sub-Court. Coimbatore tor stay of all execution proceedings under Madras Ordinance, V o 1854. It was dismissed by the Sub-Court. The Judgment-debtor flled an appeal against that order in C. M. A, No. 322 of 1954 and applied in C. M. P. No. 6297 of 1954 for stay.

18-8-1954.

20-12-1954.

...

C. M. A. NO. 323 of 1954 was dismissed. Suit .by the sons of the judgment-debtor and separate possession of their shares.

E. A. NO. 391 of 1954.

...

Petition by the sons of the judgment-debtor for. stay of execu-ol the decree so far as r interest were concerned. This was dismissed.

1-11-1954.

...

E. P. R. No. 255 of 1964 was filed for arrest of the judgment-debtor.

20-1-1955.

...

Arrest ordered in the said execution ' petition. The present appeal is filed against that order.

5. The learned Subordinate Judge when he was asked to order arrest of this judgment-debtor and which is the subject matter of the present order in E. P. R. No. 255 of 1954 now under appeal, he had to consider two points viz., whether the decree-holder had established that the judgment-debtor had sufficient means to pay the decree amount within the meaning of Clause (b) to the proviso to Section 51 of the Code of Civil Procedure and secondly, whether simultaneous execution can be allowed. On both these points the learned Subordinate Judge held against the judgment-debtor and ordered arrest Hence this appeal.

6. Point 1 : That the judgment-debtor has sufficient means to pay the decree debt can admit no doubt whatsoever. His properties apparently seem to be worth 6 to 7 lakhs of rupees consisting of 300 acres of land of which 30 to 40 acres are nanja, buildings, etc. Even if the judgment-debtor's net income is not Rs. 40,000/- as mentioned by the decree-holder and much more than Rs. 10,000/- or Rs. 15,000/- as mentioned by the judgment-debtor, it would certainly be in the region of Rs. 20,000/- at least.

The judgment-debtor wants to get over this possession of ample properties for meeting this decree debt in two ways. First of all he says that he is not realizing any income from the properties regularly. The learned Subordinate Judge who has analysed the evidence of the witnesses examined by him has come to the conclusion in paragraph 7 of his order with which I agree that making every allowance the share of the respondent judgment-debtor in the properties will certainly be very much more than the decree amount and that he has means to pay the decree debt.

Secondly, the judgment-debtor contended that his properties are under attachment and that therefore he cannot dispose of them and pay this decree debt. But as pointed out by the learned Subordinate Judge the judgment-debtor owns about, 300 acres 06 land of which 30 to 40 acres are nanja and that as regards the properties attached it is seen that in E. P. R. No. 34 of 1953, 74 cents of wet land were attached in addition to some other lands and that even if the properties are attached the judgment-debtor can always ask for and would be given permission by the Court to sell properties by releasing a portion and ear-marking the sale price for the discharge of the decree debt.

The judgment-debtor attempted to meet this by stating that there will be no purchasers for the properties which is an absolute falsehood, because the decree-holder undertook to bring purchasers if the judgment-debtor was willing to sell the properties and in fact he would even be prepared to purchase them himself in satisfaction of his decree debt. There fore the conclusion of the learned Subordinate Judge that the decree-holder has affirmatively and satisfactorily shown that the judgment-debtor has the ready as opposed to remote means to pay the decree debt and that he is deliberately evading to do so has been fully established and point I taken by the judgment-debtor fails Atta Karim v. Mt. Bibi Habiba, (B); Jogesh Chandra v. Timkori Datta, AIR 1942 Pat 242 (C); Ponnuswami Chatty v. Narayanaswami Chetty, 25 Mad LI 545: 21 Ind Gas 293 (D); Gubboy v. Ramdoyal, 2 Cal WN 588 (E).

7. In considering whether the decree-holder has affirmatively shown that the judgment-debtor has sufficient means to pay the decree amount and which burden can be discharged either by affirmative evidence or by placing sufficient circumstances before the Court to lead to that inference, the Court should bear in mind what has been laid down in Maddavan Nambiar v. Chaldean Syrian Bank, Ltd., (F), viz., that the Code was amended so as to protect honest debtors of all classes from detention in prison and to confine such provisions to debtors proved to be recalcitrant or fraudulent or contumacious (Marris v. Ingram, per Jessel M. R. (1879) 13 Ch D 338 at p. 343 (G) ), that it applies to all judgment-debtors and the protection is not restricted only to Small debtors, that it is open to a Court to apply a judicial corrective to the extreme lengths to which the onus which the Code casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing Court on the materials placed before it, to come to an inference as regards the statutory findings required by proviso (a) (ii) and (b) of Section 51 of the Code of Civil Procedure.

8. Point 2: That simultaneous execution both against the property & person of the judgment-debtors is allowed under Order XXI, Rule 30 C. P. C., is now settled law. Mahomed Hussain Shah v. Co-operative Society for Loans of Shahpur City, AIR 1943 Lah 166 (H); Uma Kanta v. Benwick & Co., Ltd., (I).

9. But the Court has a discretion under Order XXI, Rule 21 C. P. C., to, refuse simultaneous execution and to allow the decree-holder to avail himself of only one mode of execution at a time. In the circumstances of this case Order XXI, Rule 21 has no relevance. The Privy Council dictum already referred to viz., the difficulties of a litigant in India begin when he has obtained a decree, is the basis for many decisions that a Court is not justified in refusing execution against the person of the judgment-debtor on the ground that the decree-holder should proceed against his property. It is its duty to offer the D. H. all possible and reasonable facilities for realising the decretal amount in as short a time as possible: Damodar Das v. Bindeshwari Singh, AIR 1936 Pat 76 (J).

10. Where therefore a decree-holder presses for arrest of the judgment-debtor, the Court cannot except as provided by the proviso to Section 51 C. P. C., compel the decree-holder to proceed against his property or to accept payment by instalments. Hargobind Kishen Chand v. Hakim Singh & Co., ILR 6 Lah 548: (AIR 1926 Lah 110) (K); Baburao v. Mt. Gopikabai, AIR 1942 Nag 58 (LJ; Dwarka Nath v. Sailaja Kanta, AIR 1918 Cal 186 (M).

11. To sum up, the duty of the Court is to follow the procedure prescribed under Order XXI, Rule 40 C. P. C. and then find if it is satisfied on the evidence that the instant case before it falls within any of the clauses in the provisos (a) to (o). If the case falls within any of the clauses of the proviso then Court has to record its reasons in writing that the judgment debtor should be committed to prison for one of the five reasons set out therein If the cause is insufficient the Court is bound to order arrest. If on the other hand the decree-holder fails in the discharge of his burden to prove that the circumstances specified in the section exist, the Court is equally bound to reject the application.

12. Bearing these principles in mind, if we examine the facts, of this case, we find that the decree-holder is entitled to simultaneous execution. Point 2 fails.

13. There are no merits in this appeal and it is dismissed with costs. The order of the learned Subordinate Judge ordering arrest is confirmed. The stay granted by this Court will stand dissolved and further execution will proceed without further delay.

Simultaneous execution can proceed in two separate applications against two different judgment-debtors for the same amount due under the decree, at one and the same time

 Andhra High Court

Bethia Venkanna vs Sait Chunilal Moolchand ... on 29 February, 1960

Equivalent citations: AIR 1961 AP 63

Author: A Ayyar

Bench: S Raju, A Ayyar

JUDGMENT Anantanarayana Ayyar, J.

1. This appeal by one of the judgment-debtors (second defendant) is directed against the order of dismissal in E. A. No. 205 of 1957 in O. S. No. 124 of 1934 on the file of the Subordinate Judge's Court, Kakinada. The respondent herein is the decree-holder (plaintiff).

2. The material facts are briefly these: A firm of Sait Chunilal Moolchand filed O. S. No, 124 of 1954 against Chundrapu Lovaraju and the present appellant on an amount due, on a settlement of accounts, towards the principal and interest. The first defendant contended in the suit that he was entitled to the benefits of Madras Act IV of 1938 and the lower court allowed that plea and restricted his liability under the decree to an amount of Rs. 14,619-13-7, while against the appellant, a decree was pawed for Rs. 19,282-1-3.

In execution of the decree, the respondent filed E. P. No. 261 of 1956 against Chundrapu Lovaraju, (first defendant) for the full sum of the decree against Mm and got his properties attached and brought them to sale on 25-2-1957. While that F. P. was pending, the respondent filed a separate execution petition (E. P. No. 42 of 1957) against the appellant for the entire amount of Rs. 19.282-1-3 and subsequent interest and cost of suit and got attached his cargo of fibre bales which had been loaded in the boats of D. S. Narayana and Co., on 17-2-1957.

Thereupon, the appellant filed E. A. No. 205 of 1957 praying that the attachment may be restricted to an amount of Rs. 5,000/- being the difference between the amount payable under the decree by the 1st defendant and the amount payable thereunder by the appellant, i.e., Rs. 19,282-1-3 minus Rs. 14,619-13-7 and that the attachment may be raised after receiving the said amount from the appellant. The respondent Sled E. A. No. 207 of 1957 with which we are not concerned here. The learned Subordinate Judge heard the E. As. together and passed a single common order dismissing E. A. No. 205 of 1957 and allowing E. A. No. 207 of 1957. The second defendant being aggrieved with the order of dismissal in E. A. No. 205 of 1957 has preferred the above appeal.

3. The simple point that arises for consideration in this appeal is as to whether smmultaneous execution can proceed in two separate applications against two different judgment-debtors for the same amount due under the decree, at one and the same time?

4. At the outset it may be stated that no direct decision bearing on this point has been placed before us and arguments proceeded only on general lines of reasoning with the aid of some decisions relating to similar matter.

5. Learned counsel for the appellant contends that as an earlier E. P. No. 261 of 1956 against the first defendant for Rs. 14,000/- and odd was pending, a subsequent E. P. 42 of 1957 against the second defendant can only be for the sum which was due from the latter less what was due from the former. In other words, his grievance is that the decree-holder is anyhow going to realise the amount decreed against the first defendant by sale of the house property in that execution petition and hence, he cannot be allowed to execute the decree against the appellant for the entire amount for which a decree was passed against him.

The argument proceeds on the basis that, as regards the sum of Rs. 14,619-13-7, there cannot be two E. Ps. simultaneously pending against the two defendants. We are unable to accede to this contention. For the decree-holder is entitled under law to proceed simultaneously against the different judgment-debtors in execution of his decree and even the specific permission of the Court is not required for such a course. There is nothing in the Civil Procedure Code or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously.

Under Order 21, Rule 11(2) (c), C. P. C., the decree-holder has to mention in an E. P. only "whether any, and (if any), what payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree' and not the amount for which he has filed any E. P. which is pending. Under Order 21, Rule 11(2)(f), C. P. C., every application for execution of a decree should state whether any and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.

Certainly this provision does not bar simula-neous executions. Order 21, R. 30, C. P. C., deals with simultaneous execution of a decree in several ways. This provides for the execution of a decree for the payment of money by detention of the judgment-debtor or by the attachment and sale of his property or by both. Even these two modes of execution are mentioned as alternative to other reliefs which were available to the decree-holder and it is for the latter to choose and decide. Rule 21 is general in its terms and it contemplates that the execution of a decree against the person and property of the judgment-debtor can proceed simultaneously. In fact, its implication is that in the absence of a specific provision, the Court may not have any discretion to refuse the simultaneous execution.

6. In Om Prakash v. Tahera Begum, (S) , it was held that unless a right to apply for execution of the decree in any of the modes permissible by law is definitely restricted, a bar to such a legal right should not he interred, for it should be fairly laid down by a statute. That case related to simultaneous execution against the same person by arrest in one petition and by proceeding against the property in the other petition. Applying the principle stated in this decision, it has to be seen whether there is any definite bar to simultaneous execution, as contended in the present case.

7. In our judgment, a decree-holder can in law file two execution petitions when it is clear, that the execution in each petition is only for the decree amount due from the defendants concerned in that petition. It is not disputed that the full amount of decree is due from each of them -- as in the present case, when E. P. No. 42 of 1957 was filed against the second defendant, obviously the full amount of Rs. 19,282-12-3 with subsequent interest and costs was due on that decree from the second defendant and the full amount of Rs. 14,619-13-7 with interest and costs was due from the first defendant.

There does not appear to be any reason why in filing E. P. No. 42 of 1957, the decree-holder should exclude, by deducting from the decree amount due from the second defendant, the decree amount which was still due from the first defendant which had not been collected though attempt was being made by the decree-holder to collect the latter amount from the first defendant in the pending E. P. No. 251 of 1956. The position would be different if any amount was collected from the first defendant in E. P. No. 261 of 1956 even prior to the decree-holder filing E. P. No 42 of 1957.

But we are not here concerned with such a contingency. We do not see any logic or force in the contention advanced by the learned counsel for the appellant that the decree-holder should behave in E. P. 42 of 1957 as if he had collected the entire amount due from the first defendant in E. P. No. 261 of 1956. It cannot be pretended for a moment that every Execution Petition filed against every judgment-debtor succeeds cent per cent and thereby results in the realisation of the entire amount due under the decree.

There is many a slip between the filing and the closing of an execution petition and a decree-holder has ordinarily to face the chance of an execution petition not being successful in full. He has to take a practical view of the matter, realise the undeniable fact that he may meet a stiff contest in that petition and that the amount of effort, ingenuity and tactics which are put forward by the judgment-debtors in that petition can be of large magnitude and can deprive him of realisation of the decree in full or in part.

It is only quite common that not only in suits but also in execution petitions all possible lines of fact and law are explored by parties concerned to gain success for themselves at the cost of the opposite party. Consequently, if the law were to force a decree-holder to treat an execution petition which he has filed for a certain amount as equivalent to having realised the amount, it would be like forcing him to count the chickens before they are hatched. We find that the contentions raised on behalf of the appellant are untenable and agree with the conclusion reached by the lower Court.

8. In the result, the appeal fails and it is accordingly dismissed with costs.

Temporary Injunctions granted in favour of Defendant is in executable after dismissal of suit - A citation of Bombay High Court

 Bombay High Court

Ramesh Ramaji Akre And Ors. vs Smt. Mangalabai Wd/O Pralhad And ... on 8 April, 2002

Equivalent citations: 2002 (3) MhLj 579

Author: D Sinha

Bench: D Sinha

JUDGMENT D.D. Sinha, J.

1. Heard Shri Gharote, learned Counsel for the applicants, and Shri Shukla, learned Counsel for the non-applicants.

2. The revision is directed against the order dated 15-3-1995 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur below Exh. 1 in Regular Darkhast No. 25/1995 whereby Executing Court issued warrant of possession against the present applicants (original plaintiffs) under Order XXI, Rule 32(1) read with Order XXXIX, Rule 2(a) of the Code of Civil Procedure. The relevant facts, which have given rise to the controversy in issue, are as follows :

3. The applicants filed Regular Civil Suit bearing No. 2262/1992 against the Corporation of City of Nagpur and deceased Pralhad Ramaji Akre, husband of non-applicant No. 1 and father of non-applicant nos. 2 to 4. It was pleaded by the applicants in the suit that they were in possession of shop No. 26 situated at Fuloli, Itwari, Nagpur and were doing business of sale of flowers in the said premises since long. The said shop was taken on lease by Ramaji Akre, who was father of applicant nos. 1 and 2 and husband of applicant No. 3 sometime in the year 1932 and since then Ramaji Akre was conducting his business in the said premises, which belonged to Nagpur Municipal Corporation.

4. It was further stated in the plaint by the applicants that Ramaji Akre was karta of the joint Hindu family consisting of applicants and Pralhad s/o Ramaji Akre (original defendant No. 3) as well as other children of Ramaji Akre. Ramaji Akre continued his business in the said shop till his death, i.e. 27-8-1970. After his death, Pralhad became the karta of joint Hindu family and was permitted to mutate his name as lessee of shop No. 26. Pralhad Akre wanted to start his own business and, therefore, he orally relinquished his claim/share in shop No. 26 as well as in the business of sale of flowers in favour of applicants. The applicants, therefore, came into possession of shop No. 26 sometime in the year 1973 and carried on the business of sale of flowers in the suit premises. However, in 1992, Pralhad Akre lodged a complaint with Police Station, Lakadganj against the applicants with intention to harass them. Pralhad Akre also lodged a complaint in the office of Corporation of City of Nagpur with malafide intention to dispossess the applicants from shop No. 26. In view of the above facts, the applicants apprehended dispossession and, therefore, filed Regular Civil Suit No. 2262/1992.

5. In the said suit, application for grant of temporary injunction was moved by the applicants under the provisions of Order XXXIX, Rules 1 and 2 of Code of Civil Procedure. Original Defendant No. 3 Pralhad Akre on 4-1-1993 also moved an application for grant of mandatory injunction under Order XXXIX, Rules 1 and 2 read with section 151 of Code of Civil Procedure and in the said application, it was alleged by him that suit shop No. 26 was allotted to him on licence by the Corporation and he was in possession till 23-10-1992. It was further stated by him that he was dispossessed by the applicants sometime in the month of October 1992.

6. Both the above referred applications were decided by the trial Court on 5-4-1993. The trial Court rejected the application moved, by the plaintiffs/ applicants for grant of temporary injunction (Exh. 5) and allowed the application for interim injunction filed by Pralhad Akre (Exh. 16) and directed that original defendant No. 3 Pralhad Akre be put in possession of shop No. 26 at Fuloli, Bhajimandi, Itwari, Nagpur and further applicants were temporarily restrained from interfering with the possession of original defendant No. 3 Pralhad Akre. The applicants thereafter filed a pursis dated 25-1-1995 and stated therein that the applicants/plaintiffs do not want to proceed with Regular Civil Suit No. 2262/1992 and sought permission to withdraw the same. The trial Court passed an order on the said pursis on 25-1-1995, which reads thus :

"In view of the withdrawal pursis Exh. 68, this suit stands disposed of for want of prosecution. Issue court fee refund certificate as per rules."

7. The present non-applicants (legal heirs of original defendant No. 3 deceased Pralhad Akre) filed Regular Darkhast No. 25/1995 for issuance of warrant of possession against the applicants. The executing Court issued notice to the applicants, who were parties to the execution proceedings. The applicants submitted their reply/objection. The trial Court after taking into consideration the contentions of the non-applicants as well as objections lodged by the applicants, passed the impugned order dated 15-3-1995 and issued warrant of possession against the applicants/original plaintiffs under Order XXI, Rule 32(1) read with Order XXXIX, Rule 2 (a) of Code of Civil Procedure. Being aggrieved by the same, the applicants/plaintiffs have moved the present revision.

8. Shri Gharote, learned Counsel for the applicants, assails the impugned order on the ground that the applicants were plaintiffs in Regular Civil Suit No. 2262/1992 and the non-applicants were defendants. The applicants filed a pursis for withdrawal of the suit and the trial Court was pleased to allow the same vide order dated 25-1-1995 and proceedings were closed. It is contended by the learned Counsel for the applicants that since the suit is disposed of, the orders, which were passed during pendency of the suit on interlocutory applications, merged in the order of withdrawal of the suit and those interlocutory orders came to an end on the date the suit was permitted to be withdrawn and the interlocutory orders cannot be treated to be in existence thereafter. It is, therefore, contended that execution proceedings initiated by the non-applicants for execution of interim injunction order dated 15-4-1993 are not maintainable since existence of that interim order came to an end on 25-1-1995 when trial Court passed a final order and permitted the applicants/plaintiffs to withdraw the suit and proceedings initiated by filing the suit were closed.

9. The learned Counsel for the applicants states that the non-applicants did not file counter claim in the suit and, therefore, there was no occasion for the trial Court to adjudicate upon the claim of the non-applicants in regard to premises in question, i.e. shop No. 26. It is contended that if the non-applicants were aggrieved by the order dated 25-1-1995 passed by the trial Court allowing the applicants to withdraw the suit, they were at liberty to file an appeal or could have taken suitable steps to get the above referred order reviewed. However, non-applicants neither filed appeal nor moved application for review of the said order and, therefore, order dated 25-1-1995 reached finality and proceedings initiated by way of Regular Civil Suit No. 2262/1992 by the applicants were withdrawn and proceedings were closed. All these objections were raised before the executing Court. However, the executing Court erred in ignoring these objections and, therefore, impugned order is not sustainable in law. In order to substantiate the contentions, reliance is placed by the learned Counsel for the applicants on the judgments in Nagar Mahapalika, Lucknow v. Ved Prakash, , Arjun Singh v. Mohindra Kumar and Ors., and Bank of Maharashtra v. M.V. River Ogbese, a Vessel Registered Outside India and others, 1989 Mh.LJ. 1037.

10. Shri Shukla, learned Counsel for the non-applicants (legal representatives of original defendant No. 3 Pralhad Akre), disputes the contentions canvassed by the learned Counsel for the applicants and states that in the year 1972 licence was issued in the name of original defendant No. 3 Pralhad Akre by the Corporation and since 1972 to 1992, he was paying the licence fee and running the shop. The applicants never raised any objection in this regard. It is contended that in the month of August 1992, original defendant No. 3 Pralhad Akre fell ill and was admitted in the hospital. The applicants/plaintiffs took advantage of his illness and started running business of sale of flowers from the premises in question in his absence. Pralhad Akre, therefore, lodged a complaint in Police Station in the month of October 1992. It is further contended that original licence of the shop was issued in the name of father of defendant No. 3, namely, Ramaji and after death of Ramaji, same was allotted afresh in the name of defendant No. 3 Pralhad as per Parwana letter dated 2-7-1993.

11. It is contended by learned Counsel Shri Shukla that defendant No. 3 Pralhad filed an application for mandatory injunction under Order XXXIX, Rules 1 and 2 read with Section 151 of Code of Civil Procedure in Regular Civil Suit No. 2262/1992 against the applicants (Exh. 16) and the trial Court vide order dated 5-4-1993, allowed the application (Exh. 16) and directed the applicants to put defendant No. 3 Pralhad in possession of shop No. 26 and the present applicants (original plaintiffs) were temporarily restrained from interfering with possession of defendant No. 3. It is further contended that the order dated 5-4-1993 passed by the trial Court below Exh. 16 is conclusive in nature and an executable order under section 36 of Code of Civil Procedure and hence, executing Court was justified in passing the impugned order dated 15-3-1995 in Regular Darkhast No. 25/1995.

12. It is further contended by the learned Counsel for the non-applicants that the trial Court vide order dated 25-1-1995 disposed of the suit for want of prosecution in view of pursis for withdrawal of suit filed by the applicants. Even then, force of the order dated 5-4-1993 passed by the trial Court does not come to an end and the rights created in favour of the present non-applicants in the said order are conclusive in character and could not be affected by order dated 25-1-1995 and hence, the impugned order dated 15-3-1995 is just and proper and sustainable in law.

13. It is further contended by learned Counsel Shri Shukla that the applicants should not be allowed to blow hot and cold at the same time. The applicants had filed the regular civil suit for declaration and injunction. The trial Court rejected the application moved by the applicants for grant of temporary injunction and allowed the application for temporary injunction filed by the defendant No. 3 Pralhad and also directed for restoration of possession of the suit shop to the defendant No. 3. The applicants/plaintiffs at that stage with malafide intention filed a pursis for withdrawal of suit in order to defeat the order dated 5-4-1993 passed by the trial Court below Exh. 16 and suit was accordingly disposed of for want of prosecution vide order dated 25-1-1995. However, rights accrued to the non-applicants in view of order dated 5-4-1993 are executable and, therefore, non-applicants filed Regular Darkhast No. 25/1995. According to the learned Counsel, the impugned order is sustainable in law. In order to substantiate the contentions, reliance is placed by the learned Counsel on the judgments in Venkat Niloba Kabade v. Kishan Dadarao Dhumal, 1983 Mh.LJ. 1105, Bandakayala Abdul Rajack and Ors. v. Vastad Abdul Latheef, and Suresh D. Naik and Anr. v. Manguesh R. Wagle and Anr., 2000(4) Mh.LJ. 157.

14. In order to appreciate the issue in question, it will be proper to consider some of the undisputed facts, which are as follows :

The applicants/original plaintiffs filed Regular Civil Suit No. 2262/1992 against Corporation and others for declaration and injunction in respect of shop No. 26 at Fuloli, Bhajimandi, Itwari, Nagpur. During pendency of the suit, the applicants moved an application for temporary injunction under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure. The present non-applicants are the legal representatives of original defendant No. 3 Pralhad Akre. The original defendant No. 3 also moved an application under Order XXXIX, Rules 1 and 2 read with Section 151 of Code of Civil Procedure (Exh. 16). The trial Court vide order dated 5-4-1993 rejected the application moved by the applicants/plaintiffs (Exh. 5) and allowed the application moved by the original defendant No. 3 (Exh. 16) and he was directed to be put in possession of suit shop No. 26 and present applicants were temporarily restrained from interfering with possession of the defendant No. 3. The applicants thereafter filed a pursis before the trial Court on 25-1-1995. In the said pursis, it was stated that the plaintiffs do not want to proceed with Regular Civil Suit No. 2262/1992 and prayed for grant of permission to withdraw the same. The trial Court vide order dated 25-1-1995 allowed the pursis and suit stood disposed of for want of prosecution.

15. Original defendant No. 3 Pralhad Akre died during pendency of the suit and present non-applicants were brought on record as legal representatives of deceased defendant No. 3. The present non-applicants filed regular Darkhast No. 25/1995 in the executing Court for execution of order dated 5-4-1993 and the executing Court vide impugned order dated 15-3-1995 issued warrant of possession against applicants/plaintiffs under Order XXI, Rule 32(1) read with Order XXXIX, Rule 2 (a) of Code of Civil Procedure. This order is assailed by the applicants in the present revision.

16. In the instant revision, this Court is not concerned whether plaintiffs' claim in the suit in respect of shop in question was valid and sustainable or whether present non-applicants had a better claim in respect of the said shop. All these issues in respect of entitlement of shop are kept open.

17. In view of the above referred undisputed facts, the only question which falls for consideration in the present revision is --

"whether ad interim mandatory injunction granted by the trial Court by order dated 5-4-1993 by allowing Exh. 16 in favour of the original defendant No. 3 during pendency of Regular Civil Suit No. 2262/1992 would survive or can be enforced by filing execution proceedings under Section 36 of Code of Civil Procedure after the original suit itself stands disposed of as withdrawn for want of prosecution vide order dated 25-1-1995".

18. Order XXXIX, Rules 1 and 2 of Code of Civil Procedure deals with powers of the Court to grant temporary injunction. The plain reading of Order XXXDC, Rules 1 and 2 shows that the injunction granted by the Court under these provisions is temporary in nature and can operate until disposal of the suit or until further orders. Therefore, order passed under these provisions cannot be said to have independent existence de hors of the suit and can survive or can be continued only during pendency of the suit unless the same is modified or altered either by the same Court or by the higher Court. In the instant case, order dated 5-4-1993 passed by the trial Court is an interlocutory order, which is of temporary nature and by very nature of the order, could remain in existence during pendency of Regular Civil Suit No. 2262/1990.

19. Similarly, Section 151 of Code of Civil Procedure gives inherent power to the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court, however same is required to be exercised by the Court, normally, when there is no other statutory remedy available to the parties to redress their grievance or to prevent abuse of the process of Court. Whenever there is a statutory provision/remedy provided under the Code or statute, parties to the litigation are required to exhaust those remedies and in such situation, Court is not expected to exercise inherent powers. In the instant case, application though moved by the non-applicants under Order XXXIX, Rules 1 and 2 read with Section 151 of Code of Civil Procedure, the trial Court has exercised power under Order XXXIX, Rules 1 and 2 only while passing order dated 5-4-1993 whereby defendant No. 3 was directed to be put in possession of shop No. 26 and applicants were temporarily restrained from interfering with his possession. The order dated 5-4-1993 passed by the trial Court undoubtedly is an interlocutory order having temporary existence during pendency of the main suit and same must merge in the final order passed in the suit unless contrary is proved.

20. The orders which are passed under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure by the Court during pendency of the suit, if are treated to be conclusive and final orders, decides the rights of the parties involved in the suit finally, and it would create a peculiar situation not known to the civil procedure. As stated hereinabove, the order under Order XXXIX, Rules 1 and 2 is always interlocutory/temporary in nature and can be said to be in force only during pendency of the suit unless it is altered or modified by the competent Court.

21. Similarly, it is also not necessary that suit should be disposed of only on merits in order to bring an end to interim order. What is contemplated in law is that such interim order would continue to operate till suit is disposed of one way or the other and would come to an end on the day suit is disposed of. Whether suit is disposed of for want of prosecution or on merits is not the criteria to decide existence of interim orders. These orders by their very nature are temporary and remain in force only during the pendency of the suit and come to an end when the suit is disposed of one way or the other.

22. Another aspect which requires consideration is whether provisions of Section 36 of Code of Civil Procedure are attracted in the case of orders which are passed under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure. The provisions of Section 36 relate to execution of decree and are also deemed to apply to execution of orders. However, considering the controversy in the present case and as already discussed hereinabove, the order dated 5-4-1993 being an interlocutory order of a temporary nature has come to an end or merged in the order by which suit is disposed of. Once having held that the said order has come to an end, it loses its force and effectiveness and same is not executable via Section 36 since the same is not in existence. The contention canvassed by the learned Counsel for the non-applicants in this regard is misconceived and devoid of substance. In view of the facts and circumstances of the present case, the provisions of Section 36 of Code of Civil Procedure are not attracted and, therefore, application which is filed by the non-applicants for issuance of warrant of possession under Section 36 is not maintainable. Similarly contingencies contemplated under Order XXI, Rule 32(1) of Code of Civil Procedure are entirely different and operate in a different area altogether and cannot be equated with the issue in question and, therefore, same also cannot be said to be attracted in the present case. Consequently, the impugned order dated 15-3-1995 cannot be sustained in law.

23. This Court in the case of Bank of Maharashtra v. M.V. River Ogbese, a Vessel registered outside India and Ors., 1989 Mh.LJ. 1037 while dealing with Rule 941 of the Rules of the High Court of Judicature at Bombay on the Original Side had an occasion to consider the concept of interim order/interim relief and in para 10 of its judgment, this Court observed thus:

"the word "interim" when used as a noun means "intervening" and when used as an adjective, it means "temporary" or "provisional" (Pocket Oxford Dictionary). Interim reliefs are granted to serve the temporary purpose of protecting the plaintiffs interest so that the suit is not frustrated. By their very nature, interim reliefs last as long as the suit lasts. They are "interim" because they operate during the interval between the institution of the suit and its disposal. The words "interim reliefs" mean reliefs granted to last during such intermediate time, interval, interlude or meantime, as exists during the pendency of the suit. Such reliefs whether granted ex pane or upon hearing the defendant have a common character, which is marked by their temporary, provisional, intermediate nature. The argument of Counsel stems from the erroneous assumption that ex parte reliefs are interim and those granted after hearing the defendants are not. In my opinion, all reliefs ex parte or otherwise, granted during the pendency of the suit, are interim in their nature."

24. In view of the above referred observations, it is evident that the orders which are passed during pendency of the suit are interim or temporary in nature and can last as long as the suit lasts. In the instant case, therefore, the order dated 5-4-1993 passed by the trial Court undoubtedly was interim in nature whereby applicants/plaintiffs were temporarily restrained from interfering with possession of the original defendant No. 3 and hence, it must necessarily come to an end on 25-1-1995 when the trial Court disposed of the suit for want of prosecution and further proceedings by way of Regular Darkhast No. 25/1995 initiated by the present non-applicants cannot be sustained in law.

25. Similarly, the Apex Court in para (13) of the judgment in the case of Arjun Singh v. Mohindra Kumar and Ors., observed thus :

"It is needless to point out that interlocutory orders are of various kinds; some !ike orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court." These observations also propagate that the order granting stay or injunction, etc. are passed to preserve status quo pending litigation and such orders do not decide merits of the controversy in issue in the suit. In view of this legal position, the order of grant of injunction in the present case, i.e. order dated 5-4-1993 is an order which is interlocutory in nature and it does not decide merits of the controversy in issue in the suit and is in that sense, designed to preserve status quo pending litigation and, therefore, must merge in the final order by which suit is disposed of one way or the other and whatever rights created by the said order in favour of the non-applicants also would come to an end by the final order in the suit and execution proceedings pursuant to such order will not be maintainable.

26. Similar view is expressed by the learned Single Judge of Allahabad High Court in the case of Nagar Mahapalika, Lucknow v. Ved Prakash, by observing that if interim injunction is issued under Order XXXIX, Rule 1 of Code of Civil Procedure and subsequently the suit is dismissed for default, interim injunction order would cease on dismissal of the suit and would not automatically revive on setting aside dismissal order and restoration of suit.

27. In view of the ratio laid down by the above referred judgments of Apex Court and other High Courts, the view taken by this Court in the present case is fortified and, therefore, the impugned order passed by the Executing Court is not sustainable in law.

28. The ratio laid down in the judgment of this Court in Venkat Niloba Kabade v. Kishan Dadarao Dhumal, 1983 Mh.LJ. 1105, on which reliance is placed by the learned Counsel for the non-applicants, does not help the proposition canvassed by the non-applicants since facts involved in the said case are different than those in the present case. There is, even otherwise, no quarrel with the proposition that by virtue of amended Section 36 of Code of Civil Procedure, the orders of the Court can be executed and provisions of Code of Civil Procedure relating to execution of decree are made applicable to execution of the orders. In the instant case, as observed hereinabove, the order dated 5-4-1993 passed by the trial Court does not survive after suit is disposed of and hence, question of execution thereof does not arise. In my opinion, therefore, non-applicants cannot derive any advantage from the ratio laid down by this Court in the above referred case.

29- Similarly, reliance placed by the learned Counsel for the non-applicants on the judgment of Andhra Pradesh High Court in Bendakayala Abdul Rajack and Ors. v. Vastad Abdul Latheef, , in my opinion, does not support the contention of the non-applicants particularly when the nature of order in the said case was in the form of decretal order and same was based on the consent memo, which contained undertaking of the plaintiff himself. In view of the facts and circumstances of the said case, provisions of Section 36 of Code of Civil Procedure were said to be attracted. The matter was remanded by the learned Judge to the lower Court with a direction to dispose of the same afresh in the light of the observations made therein. In view of these aspects, the ratio laid down in the said case does not help the present non-applicants.

30. Another judgment of this Court in the case of Suresh D. Naik and Anr. v. Manguesh R. Wagle and Anr. 2000(4) Mh.L.J. 157 relied upon by the non-applicants is also not of any help to the non-applicants. In that case it was held that --

"once the forcible possession of the respondents from the suit premises was established, they had to be put back in possession. Technicalities or technical objections to frustrate the mandatory temporary injunction which had attained finality cannot be permitted to thwart the course of justice. The impugned order did not suffer from any jurisdictional error or that the trial Court had in any manner acted illegally or with material irregularity so as to justify interference in revisional jurisdiction by the High Court."

The issue involved in the above case is, therefore, entirely different. In that case, Court was considering the issue as to whether possession can be restored back to a party, who was forcibly dispossessed and validity of such order was called in question. The ratio therefore, in my opinion, does not have any bearing on the issue in question.

31. For the reasons stated hereinabove, the above referred question is answered in negative.

32. In the result, the impugned order dated 15-3-1995 passed by the Executing Court below Exh. 1 in Regular Darkhast No. 25/1995 cannot be sustained in law and hence, the same is quashed and set aside. The revision is allowed. No order as to costs.