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Report No. 27

Order XXXIX, rule 1

A recommendation was made in the Fourteenth Report1-2 to take away the power of courts to issue an injunction to stay an execution sale. It was felt that such injunction held up execution proceedings, and that no harm could ensure if the sale were to be allowed to go on.

It is, however, considered that there may be cases where such a power is really needed, particularly where interests of a third party are in issue3 (or, even in the case of party to the decree, where the decree is challenged on the ground of fraud, etc.) The change has not therefore been carried out.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee (1925) Report, p. 413, para. 6.

3. As to applications for injunction by a person who was not a party to the decree, see Deochandra v. Amalendu, AIR 1958 Pat 146.

Order XXXIX, rule 2

This is consequential1.

1. See Order 39, rule 2A, proposed, which covers the matter contained in Order 39, rule 2(3) and (4).

Order XXXIX, rule 2A (New)

1. The object of this amendment is to provide for the consequences of the breach of an injunction issued under rule 1, which is at present uncovered. It extends the existing provisions for breach of an injunction granted under rule 2. [See Order XXXIX, rule 2, sub-rules (3) and (4) to injunctions under rule 1 as well.]

2. Compare the Calcutta Amendment to Order XXXIX, rule 1 (2), as construed in the under-mentioned case1. See also Order XXXIX, rule 2A (Allahabad)2. The position at present is not very clear3.

3. There is a certain amount of controversy4-5 as to whether a court to which a suit is transferred can punish disobedience of an injunction issued by the predecessor court. From the practical point of view it is advisable to give this power to the transferee court, and that has been made clear in that portion of the new rule which corresponds to existing Order XXIX, rule 2(3).

1. Shyam Sundar v. Satchidananda, ILR 1957 Cal 315: AIR 1955 Cal 351. Also see AIR 1934 Cal 818.

2. As to the Allahabad Amendment, see Balbhaddar v. Bala, AIR 1930 All 387 (388) and Janak v. Kedar, AIR 1941 All 140 (141) (cases before the Amendment).

3. See AIR 1963 AP 136 (137); AIR 1947 Mad 98; Sitaram v. Lachmi Narain, AIR 1946 Pat 47 (49); AIR 1936 Pat 23; Panna v. Seth, AIR 1945 Nag 134: AIR 1955 Cal 351.

4. Mouna Guruswami v. Sheikh Mohaundi, AIR 1923 Mad 92.

5. Mineral Development Ltd. v. State of Bihar, AIR 1962 Pat 443.

Order XXX1X, rule 8

The object of the amendment is to provide that orders under rules 6 and 7 of Order XXXIX can be made without notice in urgent cases. Cf. Order XXXIX, rule 3. At present there is no such provision, though courts can take prompt action by appointing a receiver or granting an injunction ex parte1.

1. AIR 1943 Born 148.

Order XL, rule 1 (2) and Allahabad Amendment

Under the Allahabad Amendment to Order XL, rule 1 (2), the prohibition against removal from possession, etc., of any person whom a party to the suit has no personal right so to remove, has been narrowed down to any person not being a party to the suit. That is to say, where a party to the suit is to be removed, this prohibition does not apply. The under-mentioned decisions show the origin and effect of the amendment1-2-3.

As the view of most of the other High Courts is that sub-rule (2) does not bar the removal of a party to the suit from possession4, the amendment has not been adopted.

1. Tulsa v. Chiranjit, AIR 1943 All 1.

2. Biresswar v. Sudhansu, AIR 1947 All 157.

3. Anandi Lal v. Ram Swarup, ILR 58 All 495.

4. Uru Kendappa v. Mallesappa, AIR 1960 AP 79 (discusses case-law).

Code of Civil Procedure, 1908 Back

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