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TMI Blog1957 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... that Abdulla carried on was a partnership concern, in which the brothers were partners. In the arrangements made subsequent to the death of Abdulla, his minor children were represented by their mother as their guardian. It may not be necessary to set out all the details of this arrangement or their validity. They constitute the subject-matter of O.S. No. 1119 of 1955, which still remains to be disposed of. After 1941 the business was carried on by Ummarkutti and Kunhamoo in partnership. Kunhamoo, the eldest of the sons of Abdulla, had by then become sui juris. It should be convenient to refer to Ummarkutti and Kunhamoo as defendants 1 and 2 respectively in the rest of this judgment ; they were so arrayed in O.S. No. 1119 of 1955. During the pendency of that suit the first defendant died. The claim of the first defendant in the suit was that in the arrangements that ensued the death of Abdulla; the business and some other assets of Abdulla were allotted to the share of defendants 1 and 2. One of the daughters of Abdulla filed a suit for partition, C.S. No. 271 of 1952, on the Original Side of this Court, which was subsequently transferred to the City Civil Court and numbered as O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only factual statements, and that I am not concerned now with the question whether they were necessary or even proper parties or not in the respective suits. 5. In execution of the decree in C.S. No. 228 of 1954 the respondent as decree holder brought; the hypotheca to sale. The sale was proclaimed to be held on 17th October, 1957. The appellant applied to the learned Additional Judge on 27th September 1957, for the issue of an interim injunction to restrain the respondent from bringing the property to sale. The application itself was in proceedings in O.S. No. 1119 of 1955, in which it should be remembered the respondent was not a party defendant. The learned Additional City Civil Judge dismissed that application on 2nd November, 1957, principally on the ground that the decree in C.S. No. 228 of 1954, in execution of which the property was brought to sale, was not a wrongful decree. The learned Judge was obviously of the view that that failed to satisfy the requirements of Order 39, Rule 1(a), Civil Procedure Code. The appeal before us is against that order. 6. During the pendency of this appeal, by an order of Ramaswami, J., in C.M.P. No. 7655 of 1957, dated 25th Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill come under Order 39, either rule I, or Rule 2. It certainly cannot come within the language of Rule 1, for there is no suggestion that the property of which delivery is to be given is in danger of being wasted, damaged or alienated. The learned Judge held further that the claim of the plaintiff in that suit would not fall within the scope of Rule 2 either. It was with reference to Rule 2 that the learned Judge pointed out: It is then argued that Rule 2 would be applicable and that this is an injunction to restrain the defendant from committing ' other injury of any kind'. The alleged injury is the execution of a decree lawfully obtained. In order to hold that that does constitute an injury, it is necessary to hold that the decree is illegal, for, if the decree is legal, the defendant has every right to execute it and in doing so he cannot be said to commit any injury. The learned Judge did not refer to the other class of cases for which also Order 39, rule I (a) provided, where the property in dispute in a suit is in danger of being wrongfully sold in execution of a decree. Varadacharyulu v. Narasimhacharyulu (1925) 23 L.W. 85 cannot therefore be really looked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. If the other view were correct, then the appellant would have a greater remedy in such cases, i.e., an injunction, than he has in the suit under appeal. Whilst the decree remains unreversed, it is a good decree and all steps in execution of it are perfectly legal. Whether it was really a case of jurisdiction or one of discretion, the scope of both of which was governed by Order 39, Rule 1(a), and whether the proposition laid down by the learned Chief Justice in the first sentence of the passage I have extracted above is not too wide as it stands, if taken out of its context, may have to be considered should occasion arise for it. However, if I may say so with respect, I find myself in complete agreement with the principle that underlies the second sentence in the passage I have extracted above, that an interim relief granted during the pendency of a suit should not be of greater scope than what could be granted in the suit itself, after the party has established his right in the suit to that relief. In my opinion, that would be a very relevant factor to be taken into account in deciding whether a Court should or even could grant such an interim relief, especially so when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be shared by all the other heirs who would get an interest in the firm....The liability in this suit is admittedly a liability of the firm which is clear by the Receivers being impleaded in the suit and the claim of the Plaintiff in C.S. No. 271 of 1952 (O.S. No. 1119 of 1955) is merely a right to the assets of the firm. Those assets would be ascertained only after the debts by the firm are discharged, and there cannot be any claim to the assets of the firm before this decree is discharged. In these circumstances, I consider that it is not necessary to introduce any reservation in the judgment to clarify the position. Whether the decree in the mortgage suit is one that would not bind the shares, if any, of those other than defendants 1 and 2 in the suit properties, is not, as I understand it, one of the issues that has been raised for determination in the partition suit, independent of the question, whether the determination of such an issue in that suit would bind the respondent who was not a party to that suit. Therefore, no question could arise in the main suit itself of the grant of even a declaration, that the mortgage decree was not binding on the heirs of Abdulla, includi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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