Whether Section 52 of Transfer of Property Act operates as bar to grant of temporary injunction under Order 39 Rules 1 and 2 of CPC?

In view of the submissions advanced, the following points arise for consideration and determination;

i) Whether Section 52 of the Transfer of Property Act operates as a bar to the grant of temporary injunction under Order 39 Rules 1 and 2 CPC? {Para 14}

24. From the aforesaid, we are of the considered view that Section 52 of T.P. Act although provides protection to the parties from transfers pendent lite, in as much as it makes such transfers subservient to the decree that may be passed in the suit, but it does not come in the way of passing an order of temporary injunction restraining alienation of the suit property during the pendency of the suit on the applicant satisfying all the three ingredients of prima facie, balance of convenience and causing irreparable loss or injury in his favour.

25. The distinction between Section 52 of T.P. Act and Order 39 Rules 1 and 2 CPC, is that an order of temporary injunction is of preemptive nature restraining the act of alienation by party to the suit where there is such a danger, whereas Section 52 of T.P. Act comes into play after the alienation takes place during pendency of the suit. Section 52 of T.P. Act provides for the consequences of a transfer taking place pending litigation, i.e., that the pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor(s) that may be finally determined by the court. Section 52 of T.P. Act does not come in the way of applicability of Order 39 Rules 1 and 2 CPC. In other words, notwithstanding Section 52 of T.P. Act making the transfers during pendency of the suit subject to the ultimate decree that may be passed in the suit, the court may, pass an order of temporary injunction, if all the requisite pre-conditions for such grant are satisfied. If an order is passed and transfer is restrained, the question of applicability of Section 52 of T.P. Act will not arise as then there will be no transfer pending litigation. On the other hand, if the party does not apply for temporary injunction or if the application is rejected and the suit property is transferred pending litigation, Section 52 of T.P. Act shall come into play and those transfers would abide by the ultimate result of the suit.

28. For the aforesaid reasons, we are not inclined to accept the contention of the learned counsel for the appellant that in view of Section 52 of T.P. Act providing for the effect of transfers during pendency of the suit, the order of temporary injunction under Order 39 Rules 1 and 2 could not be passed. If such an argument is accepted, then the court cannot pass an order of temporary injunction to restrain alienation in spite of specific provision under Order 39 Rule 1(a) CPC, in any case, as in every case any alienation made pending litigation would abide by the doctrine of lis pendens embodied under Section 52 of T.P. Act. This will render the provisions of Order 39 Rules 1 and 2 CPC ineffective.

 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Miscellaneous Appeal Nos. 43 and 45 of 2021

Decided On: 25.01.2022

K. Ravi Prasad Reddy and Ors.  Vs.  G. Giridhar and Ors.

Hon'ble Judges/Coram:

C. Praveen Kumar and Ravi Nath Tilhari, JJ.

Author: Ravi Nath Tilhari, J.

Citation: MANU/AP/0075/2022,

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Under Which section of CPC court can grant temporary Injunction to a party?

  The question, therefore, which stares at us, now, is this : whether it is Order 39, Rules 1 and 2, which confer jurisdiction and powers on the courts of civil jurisdiction to grant temporary injunction ? Since the orders and the rules framed thereunder merely prescribe the procedure for exercise of the powers by the courts, it logically follows that the power to grant temporary injunction lies elsewhere and not in Order 39, Rules 1 and 2. The question is, as to where lies the power to grant temporary injunction. The answer to this question really lies in Section 94 of the Code, for, the relevant portion of Section 94 reads, thus :

94. Supplemental proceedings. - In Order to prevent the ends of justice from being defeated the court may, if it is so prescribed -

(a) ...

(b) ...

(c) grant of temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and Order that his property be attached and sold.

(d) ...

(e) ...                                                   {Para 15}

16. What is, thus, clear from the above discussion is that it is Section 94(c), which vests the civil courts with the power to grant temporary injunction and also to punish for disobedience of the Order of temporary injunction. How, under what circumstances and in what manner, this power can be exercised is actually given in Order 39, Rules 1 and 2.

Gauhati High Court

Reboti Ray vs Sashi Kanta Budhia @ Agarwal on 22 February, 2006

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