Judgment:
ORDER
B.N. Dash, J.
1. This revision under Section 115 of the C.P.C. 1908 ('the Code', for short) is directed against the order of the learned District Judge, Cuttack confirming an order of the learned Subordinate Judge, First Court, Cuttack under Order 39, Rules 1 and 2 of the Code refused to grant temporary injunction.
2. Late Brundaban Palit, the father of respondent No, 1 was originally the owner of the suit land measuring Ac. 8.12 decimal with a house standing thereon which forms part of current settlement plot No. H/54 measuring an area of Ac. Order 106 decimals under Khata No. 86 of mouza Baharnal in the town of Cuttack and on his death in 1969, the opposite parties succeeded to the same. The husband of the petitioner, namely, Bhagirath Das took the suit property on rent sometime in 1954 and during the period of his occupation H.R.C. Case No. 79 of 1984 was filed by the landlord (opposite party No. 1) for his eviction and no contest having been raised the proceeding was decided ex parte on 6-7-1985. Thereafter, the said tenant filed an application under Order 9, Rule 13 of the Code which was dismissed on contest and then he filed H.R.C. Appeal No. 35 of 1985 which also met the same fate. The opposite party No. 1 started execution case No, 24 of 1987 in the court of Munsif, 1st Court, Cuttack for recovery of the suit property and in that proceeding the tenant-judgment debtor filed an application u/ Section 47 of the Code impugning the executabi-lity of the decree and allowed the same to go by default. Thereafter, he filed misc. case No. 36 of 1989 u/Section 151 of the Code for restoration of the said misc. case and allowed the same also to go by default. Again, on 27-11-1989 the tenant-judgment debtor filedan application u/Section 47 of the Code taking the plea of a pre-decree agreement between the father of the decree-holder and himself regarding sale of the disputed property, but the same was dismissed on contest. Against such decision, the tenant-judgment debtor approached this Court in Civil Revision No. 1975 of 1989, but the same was dismissed at the stage of admission with direction to the tenant-judgment debtor to vacate the disputed property by 28-1-1990, as prayed for on his behalf. Such direction of this Court having not been complied with a proceeding in contempt was started against him in original criminal misc. case No. 17 of 1990 in which he was committed to civil imprisonment for one month. In all the above proceedings, the tenant (husband of the petitioner) had furnished his address as Bhasakosh lane, Cuttack town where the present petitioner resides. All these facts are not disputed by either of the parties.
3. The pettioner, as plaintiff, instituted title Suit No. 112 of 1990 in the court of the Subordinate Judge, First Court,Cuttack for declaration of title and confirmation of possession in respect of the suit property or in the alternative for recovery of possession in the event of her dispossession during pendency of the suit and also for permanent injunction stating that she was in possession of the suit property as owner since 27-6-1969 on the basis of a sale transaction by paying the full consideration amount to the father of the present opposite party No. 1 and though there was no formal sale deed she had perfected her title by adverse possession. It was also pleaded that her husband was staying at some other place since 1975 with another woman after deserting her and that he colluded with the landlord to get the eviction order passed against him with a view to evicting her. Along with the plaint, the petitioner filed an application under Order 39, Rule 1 and 2 of the Code for issue of a temporary injunction restraining the opposite parties from interfering with her possession and enjoyment of the suit property either is pursuance of the order passed in the rent control proceeding or in any manner whatsoever. The opposite parties, as defendants in that suit, without filing any writtenstatement seriously objected to the passing of any injunction order. The learned Subordinate Judge, First Court, Cuttack, by order dt. 16-5-1992, dismissed the application holding that in view of the bar contained in Section 41(b) of the Specific Relief Act, 1963 (for short, 'the Act') no injunction can be granted inasmuch as it would result in staying of the execution case arising out of the order passed by the learned Rent Controller pending before the learned Munsif who is not subordinate to him. This order was challenged in Misc. Appeal No. 51 of 1992 which was also dismissed. Being aggrieved by such order the present revision has been filed.
4. Mr. B. H. Mohanty, the learned counsel for the petitioner has urged that the courts below went wrong in holding that a temporary injunction order cannot be issued which would result in staying of a proceeding pending in another court in view of the provision contained in Section 41(b) of the Act. According to the learned counsel, the question of issue of temporary injunction is regulated by the Court as per Section 37 of the Act and prior to the amendment of the Code in 1976 there was restriction for issue of temporary injunction which would result in restraining any person from prosecuting any judicial proceeding pending in another court in view of the Orissa amendment to Order 39. Rule 1 which made Section 41 of the Act applicable while determining the question of issue of temporary injunction, but after the amendment of the Code in 1976, the Orissa amendment to Order 39, Rule 1 of the Code became inapplicable and as such the provisions contained in Section 41 of the Act are no more impediment in granting temporary injunction. In support of such contention reliance has been placed in Smt. Nalinibala Das v. Smt. Geeta Bose, (1980) 50 Cut LT 63. Mr. M.M. Sahoo, the learned counsel for the opposite parties, on the other hand, contends that irrespective of amendment of 1976 to the Code, a Court cannot issue temporary injunction restraining a party not to prosecute any suit or other proceeding in view of the bar laid down in Section 41 of the Act. In view of these rival contentions, the point that falls for adjudication is whether a temporary injunction can be issued restraining a party from prosecuting any suit or other proceeding already pending in another court not subordinate to him in the absence of any State amendment to Order 39 of the Code.
5. This point came up for consideration before the Supreme Court in Cotton Corporation of India Ltd. v. United Industrial Bank Limited., AIR 1983 SC 1272. It was held as under :-
'Expressions 'injunction in Section 41(b) is not qualified by an adjective and, therefore, it would comprehend both interim and perpetual injunction. An interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant temporary relief is conferred, it is conceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted.'
6. In the case of Nalinibala Das, (1980 (50) Cut LT 63) (supra) the question now posed for adjudication was not decided. In that case it was merely held that with the amendment of the Code in 1976, the Patna amendment of Order 39, Rule 1 of the 1908 Code running counter to the terms of the amended Code has been deleted and at the present there is no impediment for the Subordinate Judge to grant injunction against the order of the Munsif. If has not been specifically decided therein that Section 41 of the Act will have also lutely no application after the amendment of the Code, 1976 while deciding the question of issue of temporary injunction. So relying on the aforesaid Supreme Court decision I hold that Section 41 of the Act applied to cases in which temporary injunction under Order 39, Rule 1 of the Code is asked for. In this case if the temporary injunction would have been granted then the same would have violated the provision contained in Section 41(b) of the Act and as such the court below were perfectly justified in refusing to grant temporary injunction,
7. Coming to the merits of the case it is seen that the husband of the petitioner hastried to harass the landlord (opposite party No. 1) in all possible manners and when all his attempts proved abortive his wife has tried by filing the suit to stall the execution proceeding and has thereby attempted the landlord not to enjoy the fruits of the order of eviction passed by the Rent Controller which she should not be permitted to do vide AIR 1969 Ori 233 (Judhistir Jena v. Surendra Mohanty) (1983) 55 Cut LT 95 : (AIR 1983 Ori 196), (Sarat Chandra Panda v. Hari Das) (1986) 61 Cut LT 114, (Rauf Khan v. Sara Bibi).
8. In view of what has been discussed above, there can be no manner of doubt that in passing the impugned order the appellate Court has not exercised its jurisdiction illegally or with material irregularity and as such the same cannot be disturbed.
9. In the result, I find that the revision is without merit and the same is dismissed with a consolidated cost of Rs. 200/- to be paid by the petitioner to the opposite parties.