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Petitioner: SALEH AHMED CHOWDHURY VS Respondent: KABIR AHMED
P L D 1960 Dacca 1022
P L D 1960 Dacca 1022
Before Siddiky, J
SALEH AHMED CHOWDHURY AND OTHERS Appellant‑Petitioners
versus
KABIR AHMED AND ANOTHER‑Respondents‑Opposite‑Parties
Civil Rule No. 1090 of 1959, decided on 11th July, 1960.
(a) Civil Procedure Code (V of 1908), O. XXI, r. 32 (5)‑-Not applicable to prohibitory injunction.
Sub‑rule (5) of rule 32 of Order XXI of the Civil Procedure Sty Code, 1908 by its wording clearly excludes the possibility of its being applied to a pohibitory injunction.
Sachi Prosad Mukerjee v. Amar Nath Roy Chaudhury 22 C W N 851 not foil.
Hem Chandra Nasker and another v. Narendra Nath Bose and others 38 C W N 101 ; Angad and others v. Madho Ram and others I L R 1936 All. 673 and Toon Lal and others v. Sonoo Lal and others A I R 1938 Pat. 522 approved.
(b) Civil Procedure Code (V of 1908), O. XXI, r. 32 (1) & (2)‑‑Applicable to cases of prohibitory injunction (obiter dicta).
A. S. M. Mofakher for Petitioners. Md. Mozammal Huq for Opposite‑Parties.
ORDER
This Rule was directed against a judgment and order of 1st Subordinate Judge, Chittagong in Appeal Nos. 246 and 254 of 1958 disposed of by a single judgment.
The facts, shortly, on which the appeals arose are that the opposite‑parties herein obtained a decree in Other Suit No. 13 of 1956 and by that decree the petitioner herein was restrained from interfering with the possession of the opposite‑parties and changing the nature of the suit land. The opposite‑parties in other Execution Case No. 16 of 1958 alleged that the petitioner in disregard of the said prohibitory order excavated certain ditches in the suit land and placed the earth on the nearby embankments. By this execution the opposite‑parties prayed for enforcing the decree and the, order of prohibitory injunction and their further prayer was to put the petitioner in Civil Prison and to attach his property on proof of violation of the injunction order.
The petitioners resisted the Execution proceedings on grounds that, they have not violated the injunction order and that the provisions of Order XXI, rule 32 of the Code of Civil Procedure are not applicable to the case.
The learned Munsif found that the petitioner had violated the injunction order but the provisions of Order XXI, rule 32 sub‑rule (5) are not applicable to the case.
Against this order of the learned Munsif, the petitioner preferred Appeal No. 454 of 1958 and the opposite‑parties preferred Appeal No. 246' of 1958.
The learned Subordinate Judge allowed the opposite‑parties Appeal No. 246 of 1958 by holding that sub‑rule (5) of rule 32 of Order XXI of the Code of Civil Procedure applied to the case and dismissed the petitioner's Appeal No. 254 of 1958.
Mr. Mofakher, the learned Advocate for the petitioners, argued that the provisions of Order XXI rule 32 are not at all applicable to the facts of the case and therefore the learned Subordinate Judge was wrong in allowing opposite‑parties' Appeal No. 246 of 1958 and that the learned Subordinate Judge acted with material irregularity by not applying his own mind to the facts of the case and by not properly considering the evidence on record against him in respect of violation of the prohibitory order. No doubt, the learned Subordinate Judge has disposed of the appeal, No. 254 of 1958, in nine lines and he has not properly considered the evidence against the petitioners.
Mr. Mofakher, therefore, prays that the learned Subordinate Judge's judgment be set aside and he be directed to re‑hear the appeal, No. 254 of 1958, on merits. He has relied on the decision of Calcutta High Court in the case of Hem Chandra Nasker and another v. Narendra Nath Bose and others (38CWN101) the case on which the learned Munsif relied in support of his first contention.
Mr. Md. Mozammal Huq appearing for the 'opposite‑parties relied on the case of Sachi Prosad Mukerjee v. Amar Nath Roy Chowdhury (22CWN851) in trying to refute the argument of Mr. Mofakher. He has been candid enough to admit that the treatment of Appeal' No. 254 of 1958, by the learned Subordinate Judge has been unfair and in that view of the matter he cannot resist Mr. Mofakher's prayer for a rehearing of the appeal.
Mr. Mofakher submitted that none of the Subclaules of rule 32 of Order XXI of the Code of Civil Procedure apply to a case of prohibitory injunction. I am afraid this amounts to going a little too far. I think sub‑rules (1) and (2) of rule 32 of Order XXI, are applicable to cases of prohibitory injunction 1, therefore, do not accept Mr. Mofakher's contention in this regard, but I agree with him in his submission that sub‑rule (5) of rule 32 of Order XXI, of the Code does not apply to a case of prohibitory injunction. In the case of Sachi Prosad Mukerjee .v. Amar Nath Roy, Richaradson, J. of the Calcutta High Court held that sub‑rule (5) of rule 32 of Order XXI applies to a case of a prohibitory injunction, but, unfortun ately for him, his brother Judge, Beachcroft, J., sitting with him in the same case, did not lend his support to this view of Richardson, J. This case reported in 22 C. W. N. 851 came up for considera tion in the case of Hem Chandra Nasker and another Narendra Nath Base and: others, before another Division gel h of the Calcutta High Court, and the decision in the latter case was that sub‑rule (5) of rule 32 of Order XXI of the Code does not apply to a case of, prohibitory injunction and the views of Richardson, J. in 22 C., W. N. 851 were not accepted by his latter Bench.
The view expressed by the Division Bench of the Calcutta High Court in 1933 in the case of Hem Chandra Nasker another v. Narendra Nath Bose and others, was approved and accepted by two other Division Benches of the Allahabad and Patna High Courts in the case of Angad and others v. Madho Ram and others (I L R 1938 All. 673) and in 'the case of Toon Lal and others v. Sonoo Lai and others (A I R 1938 Pat. 522). The learned Judges of this Allahabad and Patna High Courts in the above referred two decisions did not only approve and accept the Calcutta view but they gave their reasons for holding that sub‑rule (5) of rule 32 of Order XXI does not apply in the case of a prohibitory injunction. These three above decisions have been followed by a single Bench decision of the Madras High Court in the case of Nari Chinnabba Chetty v. E. Changaloroya Chetty and others (A I R 1950 Mad. 237).
I have myself no doubt that sub‑rule (5) of rule 32 of Order XXI of the Code of Civil Procedure by its wordings clearly excludes the possibility of its being applied to a prohibitory injunction. I agree with the decisions of the Calcutta, Allahabad, Patna and Madras High Courts referred to above and hold that sub‑rule (5) of rule 32 of Order XXI of the Code of Civil Procedure will not apply to the case under consideration which is a case of Prohibitory injunction.
The judgment and order of the learned Subordinate Judge in Miscellaneous Appeal No. 246 of 1958 is set aside and he is directed to re‑hear Miscellaneous Appeal No. 254 of 1958.
In the result, therefore, this Rule is made absolute with costs.
Pending the re‑hearing of Miscellaneous Appeal No. 254 of 1958, by the learned Subordinate Judge, all further proceedings in the other Execution Case No. 16 of 1958 of the Court of Munsif, Fatickchari be stayed.
K. B. A. Rule made absolute.