Sharma, J. - (1.) THIS is the plaintiff's second appeal in a suit for mandatory as well as permanent injunction.
(2.) THE circumstances under which the suit was filed are as follows. THE parties have their houses in the Gali Shanker Gujar, Chowkri Ramchanderji in the city of Jaipur. THE house of the plaintiff Moolchand is shown in yellow colour and marked 'a' on the sketch map Ex. 1 filed in this case. THE house of Jhaboo defendant has been shown in brownish colour and has been marked 'b' and the house of Shyamlal defendant is shown in brown colour and is marked 'd'. On the west of the house of Jhaboo defendant is a lane marked 'x' and on the west of this lane is a house belonging to the temple of barbers. It is shown in red colour and is marked 't', Between Shyamlal's house and the house 't' and the house 'b' there is a gali Y which is marked on the eastern side with letter 'b' and on the western side with letter 'a'. THE plaintiff's case is that the defendants were going to construct a drain on the lane 'x' and on the chowk 'c' shown in the sketch map. He alleged that the chowk 'c' belonged solely to him and the defendants had no right to construct a drain over it or pass water of their houses through it. It was also alleged that the defendants had constructed walls at points 'a' and 'b' of the gali A, B and therefore prevented the flow of the water towards east and west and had demolished a wall LM and had thereby made the water of gali AY to flow through the gali 'x*. Mandatory injunction was, therefore, prayed for the demolition of the walls at A and B and for the construction of the wall at LM and for perpetual injunction restraining the defendants from discharging the water of their houses over the chowk 'c' and also to restrain them from allowing the sweeper of then houses to pass over the said chowk. The defendants pleaded inter alia that the suit was barred by the provisions of Resolution No. 20 dated the 17th of September, 1930 of the erstwhile Jaipur State. This contention found favour with both the lower courts and consequently the plaintiff has come in second appeal to this court. It would be convenient to quote the said resolution which is as follows : "where an order has been passed by a State Executive department acting within its competent authority no civil court will exercise jurisdiction to amend or annul such order unless previous sanction has been obtained to the exercise of jurisdiction by a civil court. " It was urged by Mr. Rastogi on behalf of the appellant that in the first instance the order of the Municipal Commissioner dated 24th of April, 1946, and that of the Minister incharge in appeal dated 30th of July, 1947, were made after the suit had been filed. There was, therefore, no question of the institution of the suit without the previous sanction of these officers. Further, it was argued that so far as Minister incharge was concerned he had no power of appeal against the resolution of the Municipal Board dated the 4th March, 1947, by which the order of the Municipal Commissioner dated the 4th April, 1946, was set aside. On behalf of the respondents it was conceded by Mr. R. K. Vyas that there was no specific power of appeal against the order of the Municipal Board either under sec. 134 or sec. 137 of the Jaipur City Municipalities Act, 1943, to the Minister incharge. He however, relied upon the provisions of sec. 240 of the Jaipur City Municipalities Act hereinafter to be referred to as the Act, but subsequently gave up this part of his argument. I have considered the arguments of both the learned counsel. There is certainly no provision under the Act for an appeal against the resolution of the Municipal Board either under sec. 134 or sec. 137 (l)of the Act. The order of the Minister incharge shows that he treated the order of the Commissioner to be under sec 137. If the order is under the aforesaid section of the Act there lay no appeal to the Minister incharge against the resolution of the Municipal Board. Mr. R. K. Vyas however, argued that in fact the order of the Municipal Commissioner was under sec. 134 and not under sec. 137 and no appeal lay to the Municipal Board against the said order It was argued that the interference by the Municipal Board was consequently illegal and the resolution is ultra vires. The final order in this case is that of the Minister incharge and it purports to be under sec. 137 (1) of the Act. It was in fact treated to be the final order and no objection seems to have been raised in the lower courts that the resolution of the Municipal Board dated the 4th March, 1947, as well as the order of the Minister incharge in appeal was ultra vires. The defendants seem to have struck to the position that the order of the Minister incharge was the final word on the subject and constituted a bar to this suit in view of the resolution No. 20 quoted above. However, even supposing that the resolution of the Municipal Board was ultra vires and the order of the Commissioner is the final order, there is one factor which goes against the objection of the defendants about the filing of the suit without previous sanction of the executive authority passing the order. The first order authorising the defendant to construct the drain over the chowk in dispute is that of the Municipal Commissioner and it is dated 24th April, 1946. The suit was, filed on the 6th March, 1946, that is, more than a month before the said order. At the time of the filing of the suit, therefore, there was no occasion for the plaintiff to obtain the previous sanction of the executive authority concerned. The order of the Commissioner was passed during the pendency of the suit and I am unable to interpret the resolution No. 20 in a way which would lead to (he dismissal of the suit which had been filed before the order was made,i am afraid the question that the suit was filed before the first order in the matter was made, escaped the attention of the two lower courts, A civil suit can be barred only if there is any specific and clear impediment in its way. (do not think there was any such impediment when the suit was filed. Under these circumstances, it is unnecessary for me to go into the question whether the order was passed under sec. 134 or under sec. 137 of the Act. The appeal is allows J, the decree of the lower appellate court is set aside and the case is sent back to it for decision in accordance with law. The costs of this appeal shall abide the result of the appeal in the lower appellate court after this remand. ;