- (1.) THIS Civil Revision Petition is filed by the Defendants to set aside the order dated 6.2.2008 passed in IA.No.889/2007 in OS.No.245/2007 by the learned District Munsif, Madurai.
(2.) THE brief facts are given below:- THE Respondent/Plaintiff has filed the above said suit for declaration that the sale deed dated 18.8.2006 executed by the 1st Defendant in favour of the 2nd Defendant as null and void and for the consequential relief of permanent injunction restraining the Defendants from alienating or encumbering the suit property and interfering with the possession and enjoyment of the suit property. Pending the suit, in IA.NO.581/2007 interim injunction was sought for and when the case was posted on 22.8.2007, the court below had ordered notice and it was finally posted on 10.12.2007 and the petition was closed as the main suit itself had become ripe for trial. Again on 13.12.2007 the Respondent has filed another application in IA.No.889/2007 for the very same relief of interim injunction and pending the said application, the suit itself was posted for trial on 6.2.2008 and an exparte decree was passed on 8.2.2008 since the Defendants did not appear before the court. However, on 8.2.2008 the Petitioners filed an application under Order 9 Rule 13 of CPC to set aside the exparte decree and the same has been allowed on 17.9.2008. While disposing of the suit as exparte, the court below seemed to have allowed the said application in IA.NO.889/2007 stating that 'since the suit is decreed, the petition is allowed." According to the Petitioners, taking advantage of the exparte interim order of temporary injunction, the Respondent is trying to dispossess the Petitioners and interfering with their peaceful possession and hence, they seek interference of this court under Article 227 of the Constitution of India to set aside the exparte order of interim injunction granted by the court below. Mr.V.Raghavachari, the learned counsel for the Petitioners directly drew the attention of this court to the decision of the Honourable Supreme Court rendered in the case of Vareed Jacob Vs. Sosamma Geevargheese and others [2004-SAR-Civil-553], wherein after analysing the various decisions, the Honourable Supreme Court has held that once the dismissal is set aside, the Plaintiff must be restored to the position in which he was situated when the court dismissed the suit for default unless the court expressly or by implication excluded the operation of interlocutory orders during the period between the dismissal of the suit and the restoration. Of course, that is a case arising out of the dismissal of the suit for default, but the same analogy applies even to exparte decree being set aside and the party is relegated to the original position.
(3.) PER contra, Mr.R.Sundar, the learned counsel for the Respondent would contend that only ancillary orders such as striking out defence which are meant to aid and supplement the ultimate decision arrived at in the main suit would stand revived on the restoration of the suit and orders granting temporary injunction do not aid and supplement the ultimate decision of the suit and as such they cannot said to be ancillary orders and does not automatically stand revived. He relied on the decision of the High Court of Rajasthan rendered in the case of Kanchan Bai Vs. Katsidas and others [AIR-1991-Raj-94]. Incidentally, the learned counsel for the Respondent would submit that as against the interlocutory orders of injunction only appeal lies and a mere wrong decision without anything is not enough to attract the jurisdiction of the High Court under Article 227 of the Constitution of India.;