DUJODWALA RESINS AND TERPENES LTD Vs. BHARAT PRODUCTS
HIGH COURT OF JAMMU AND KASHMIR
Dujodwala Resins And Terpenes Ltd
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(1.) THE plaintiff is the appellant. It has instituted a suit for recovery of Rs. 6,48,263/ - against the respondents. Simultaneously, it has also
filed an application under order 39 Rule 1 CPC to restrain the -defendants
from alienating their property during the pendency of the suit, so as to
defeat the decree that may be passed by the court. This application has
been dismissed by the learned District Judge, Jammu vide order dated
10 -09 -1997 by observing as under: -
Order 39 Rule 1 lays down the circumstances under which temporary injunction can be granted. The plaintiff has filed a suit for recovery and seeks to restrain the defendants -non -applicants from alienating or transferring their property lest the decree passed in the case may not be frustrated or otherwise the plaintiff -applicant may not be deprived of its fruits. Admittedly the property of the defendants is in no manner involved in the suit nor any relief has been claimed in respect of the property of the defendants which is located outside the jurisdiction of the court for defendants being residence of Bangalore, the matter involved in the injunction application is not covered by the suit. It is settled proposition of law that there can be no question of granting temporary injunction in respect of the matter outside the scope of the suit. Therefore, injunction application is not maintainable and is hereby disallowed.
(2.) MR . Thakur appearing for the appellant argued that the trial court has mis -construed the scope of Rule -1 of Order 39 of the Code of
Civil Procedure as if it is applicable only in a suit for permanent
injunction. Mr. Gupta on the other hand argued that the order impugned
does not suffer from any infirmity because no restraint order can be
passed in respect of the property which is not the subject matter of the
suit. He supports this with reference to AIR 1958 Madras 287 (K.P.
Aboobuker Vs. Kunchamoo).
(3.) RULE -1 has three clauses. The case of the appellant is covered by sub -rule(b) of the Rule -1, which reads as under: -
(b) That the defendant threatens or intends, to remove or dispose of his property with a view to defrauding his creditors, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property (or dis -possession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the court thinks fit, until the disposal of the suit or until further orders.
The learned District Judge has thus failed to appreciate the ambit and scope of the sub -Rule. It mandates that even in a money suit
injunction can be granted to restrain the defendant from alienating any
property movable or immovalbe to protect the interest of creditors.;
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