MISC. APPEAL No. 5 of 2011 · Gauhati High Court

An application under Section 94 read with Order 39 Rule 1 and Section 151 CPC wa s filed in Title Execution Case No.161/2008. By the said application, a prayer w as made for restraining and preventing the decree holder from changing the natu re and character of the land till disposal of Misc. Case No.21/2010, which was a n application filed by the present petitioner under Order 21, Rule 99, 100 and 1 03 CPC. Both the learned Courts below had rejected the prayer on merits. Mr. B.C. Das, learned senior counsel for the petitioner submits with reference t o the statements made in paragraph 9 of this petition that the learned Court bel ow had not taken up Misc. Case No.21/2010 for consideration. He has submitted th at though the learned Courts below had rejected the prayer of the petitioner on merits, in view of the law laid down by this Court in Yogesh Shah v. Smti. Dharm eswari Devi, reported in 2006 (1) GLT 623, an application for injunction w ill not be maintainable in a proceeding arising out of an application filed unde r Order 21, Rule 99, 100 and 103 CPC. It is also his submission that in view of the aforesaid judgment, an application under Section 151 CPC would, however, be maintainable for grant of temporary injunction, if the same is necessary for end s of justice or to prevent abuse of process of Court.

Mr. B.C. Das, learned senior counsel for the petitioner submits that in view of the aforesaid position of law, he would not like to press this application and i nstead, the petitioner be given the liberty to file an application under Section 151 CPC. He submits that this Court, may, however, protect the interest of the petitioner by recording that in the event of filing of any such application, the learned Court below shall not be influenced by the findings recorded in the or ders challenged in this petition. Mr. A.K. Dutta, learned counsel for the opposite party, does not oppose the subm issions of Mr. Das, learned senior counsel for the petitioner. Having heard the learned counsel for the parties, this Court considers it approp riate to direct the learned Court below to take up Misc. Case No.21/2010, if not already taken up, for consideration and to dispose of the same in accordance wi th law.