Decided on February 02,1955



P.V. Dixit, J. - (1.) THE circumstances giving rise to this revision -petition are that the non -applicants Shrikrishna and Govindrao filed a suit against Mathura Prasad in the Court of Civil Judge First Class Bhelsa for the specific performance of an agreement for the grant of a lease of a cinema house. The trial Court gave to the Plaintiffs a decree directing Mathura Prasad to execute a lease in favour of the Plaintiffs of the cinema house for a period of six years from 1 -1 -1952 to 31 -12 -1957 on a monthly rent of Rs. 175 and to pay to the Plaintiffs Rs. 500 as damages for his failure to lease out the cinema house to them for the previous five years. The Plaintiffs and the Defendant then both appealed to the Court of District Judge Bhelsa. These appeals were dismissed by the learned District Judge. Thereafter both the parties preferred appeals to this Court. The Plaintiffs' appeals was allowed by this Court and in place of the degree passed by the trial Court a decree directing the Defendant Mathura Prasad to execute a deed in favour of the Plaintiffs leasing out to them the cinema house in suit for a period of eleven years from the date of the handing over of the possession of the cinema house to the Plaintiffs on the terms mentioned in the agreement Ex. P. 1 dated 19 -5 -1945 was passed. The Defendant's appeal was dismissed. During the pendency of appeals in the Court of District Judge Bhelsa the applicant Ramnarain instituted a suit in the Court of Munsiff Bhelsa for a declaration that the decree for specific performance passed against Mathura Prasad was not binding on him and for an order restraining the Plaintiff -non -applicants from executing the decree. In Ramnarain's suit a temporary injunction restraining the Plaintiffs from executing the decree passed by the trial, Court was made on 27 -2 -1952. This order was vacated by the Munsiff on 30 -1 -1954. Ramnarain then filed an appeal before the Civil Judge First Class who upheld the order of the Munsiff vacating the temporary injunction. He has now filed this revision petition against the order of the Civil Judge First Class.
(2.) I have heard Mr. Swami Saran learned Counsel for the applicant. In my judgment this revision petition is devoid of any substance and must be dismissed. I have already held in - 'Hariram v. Mohanlal' Madh -BLJ, 1953 1 ICR 1151 (A), and in - 'Jaswant Singh v. Sura' Madh -BLJ, 1954 HCR 399 (B), that no order of injunction can be made under Order 39 Rule 1 or Rule 2 or under Section 151 to restrain a decree -holder from executing a decree in his - favour so long as the decree stands and that merely because the Plaintiff has brought an action for setting aside the decree and that ho hopes to succeed in the suit, it cannot be held that the execution of the decree would amount to an injury. On the basis of these decisions the applicant is clearly not entitled to any order of temporary injunction restraining the non -applicants Shrikrishna and Govindrao from executing their decree. Quite apart from this the applicant failed to show that he has any prima facie case and that if an order of temporary injunction is not issued, he would suffer an irreparable injury. In his plaint the applicant has not disputed that the cinema house in question belongs to a joint Hindu family consisting of himself and Mathura Prasad. From the genealogical tree given in the plaint it is plain that Mathura Prasad is the karta of the family. The applicant has alleged that Mathura Prasad had no right to enter into a transaction with the Plaintiffs for the lease of the property; that the decree is not binding on him as at the time of the transaction he was a minor and that there was no legal necessity to support the lease. Learned Counsel for the applicant has not been able to show any authority to support the proposition that the manager of a Hindu family has no power to give lease of joint family property. The alleged minority of the applicant cannot by itself be a ground for contending that a transaction entered into by a manager of the joint family is not binding on the joint family or the minor. The decree passed by this Court does not grant to the Plaintiffs a permanent lease. Assuming that the transaction entered into by Mathura Prasad with the Plaintiffs amounted to an alienation and required legal necessity to support it, it is difficult to maintain that if the decree is executed and the Plaintiffs are put in possession, of the property and if Ramnarain ultimately succeeds in the suit he has filed, he would suffer an irreparable injury which cannot he compensated by money. It is also difficult to understand how the applicant Ramnarain can now claim the relief of a declaration that the decree passed by the trial Court, is not binding on him and for an injunction restraining the execution of that decree, when that decree was set aside by this Court and a new decree in its place was passed in Civil Second Appeals Nos. 45 and 110 of 1952. The present case seems to me to be a typical instance of the attempts of a defeated disgruntled Defendant to thwart the decree -holder in the execution of the decree. This revision petition is, therefore, dismissed with costs throughout.;

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