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1937 (10) TMI 8

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..... rdingly filed for removal of obstruction. An order for removal of obstruction was passed on 10th October, 1932 and it is agreed that early on the 11th of October the Amin, to whom the warrant to carry out that order had been entrusted, went to the locality which is about two miles from the Court premises to carry out that order. The evidence also shows that the petitioner was present during the time that the Amin was carrying out that order. On the 11th itself the respondent, against whom the order on M.P. No. 618 of 1932 had been passed, instituted O.S. No. 414 of 1932 apparently under Order 21, Rule 103 and on the same day he filed M.P. No. 1666 of 1932 for an order restraining the defendant by a temporary injunction from executing the de .....

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..... ne to his vakil at Ranipet and taken his advice as to the further course to be followed. It also appears from the evidence that even during the petitioner's absence, as the petitioner's vakil in the main case was present when the temporary injunction petition came on for orders before the District Munsiff at 2 P.M., the District Munsiff orally informed the petitioner's vakil of the order that he was passing. It may therefore be presumed, as stated by the District Munsiff, that when the petitioner went to consult his vakil, the vakil would have advised him not to disobey the injunction. I do not therefore see sufficient reason to think that any demolition was likely to have taken place after the service of the order upon the peti .....

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..... ly sold in execution of a decree. This certainly would not include the mere act of taking possession in execution of a decree. I am aware it has been sometimes held that 0.39, Rules 1 and 2 are not exhaustive of the Court s power to grant a temporary injunction-see Vidyapuma Thirthaswamy v. The Vicar of Suratkal Church (1917) 7 L.W. 328 Adaikkala Thevan v. Imperial Bank, Madura Branch (1925) 50 M.L.J. 401 and Kanshi Ram v. Sharaf Din (1922) 73 I.C. 909. A different view was taken in Nasarvanji v. Shahajadi Begam I.L.R (1922) 46 Bom. 939 and I must add that the cases which held that Order 39 is not exhaustive do not seem to have given due weight to the words if it is so prescribed' recurring in the opening paragraph of Section 94 of the .....

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