R.B.Lal, J. - (1.) THIS revision under Section 115 of the Code of Civil Procedure by the plaintiff is directed against the order dated 4-5-79 passed by the Civil Judge, Moradabad.
(2.) THE relevant facts are briefly these. In April 1979 the applicant filed an application for permission to sue as an indigent person. He alleged that he had 1/2 share in three houses, three Bank Accounts and ornaments lying in a locker in a Bank, besides agricultural property. THE three Bank accounts had about Rs. 55,000/-in deposit. While the application for permission to sue as an indigent person was still pending, the applicant moved an application for issue of interim injunction order praying that the defendants be restrained from withdrawing and the Banks concerned be restrained from allowing withdrawal of the bank deposits and the ornaments till disposal of the suit. It appears that the Civil Judge dismissed this application on 4-5-79 without issuing a notice to the defendants. The reasons given by him were that the applicant was a minor and it would not be proper to stay withdrawal of the huge amounts at his request. The amounts could be stayed from being withdrawn in case, the applicant paid the court fee. If he was successful, he could realize his share in the amounts from the defendants lateron. The injunction order would cause irreparable loss and inconvenience to the defendants. This order has been challenged in this revision. I have heard the learned counsel for the parties at some length.
(3.) THOUGH the Civil Judge did not say it in so many words, his observation that withdrawal of the amounts could be stayed if the applicant paid the court fee first, indicates that he was under the impression that the application for issue of interim injunction order was not maintainable, until the application for permission to sue as an indigent person was decided and the applicant was permitted to sue as such or paid the court fee. The Civil Judge no doubt observed that the defendants would suffer irreparable loss and would be put to inconvenience if the injunction order was passed against them. In my view, these observations were made in the passing and cannot, therefore, be taken to mean that the Civil Judge had disposed of the injunction application on merits. One thing noticeable in this connection is that the Civil Judge did not address himself to the important question whether the applicant had a prima-facie case for issue of interim injunction order. The question whether during the pendency of an application for permission to sue as an indigent person, the court can pass a temporary injunction order for preservation of the property which is the subject matter of litigation, at the instance of the applicant, came up for consideration of a Division Bench of this court in Dhaneshwar Nath Tewari v. Ghanshyam Dhar Misra, AIR 1940 All. 185. The learned Judges did not decide the question whether there was or was not a suit before the court below on the date on which it passed the interim injunction order. They however, held that apart altogether from Order 39 of the Code, the court below had ample jurisdiction to pass an order providing for the protection and security of the property which is the subject matter of the litigation. This decision was followed by the Calcutta High Court in Manorama Dasi v. Sabita Dasi, AIR 1951 Calcutta 357 (DB).;