Whether order of interim mandatory injunction can be enforced after disposal of suit?

Civil - Warrant of Possession - Withdrawal of suit - Sections 36, 151, Order 21 Rule 32(1) and Order 39 Rule 2(a) of Code of Civil Procedure, 1908 (CPC) - Present revision is directed against order whereby Executing Court issued warrant of possession against present applicants (original Plaintiffs) - Whether ad interim mandatory injunction granted by trial Court allowing in favour of original Defendant No. 3 during pendency of Regular Suit would survive or can be enforced by filing execution proceedings under Section 36 of CPC after original suit itself stands disposed of as withdrawn for want of prosecution - Held no, Order 39, Rules 1 and 2 of CPC deals with powers of Court to grant temporary injunction - Injunction granted by Court is temporary in nature and can operate until disposal of suit or until further orders - Order passed under these provisions cannot be said to have independent existence de hors of suit and can survive or can be continued only during pendency of suit unless same is modified or altered either by same Court or by higher Court - In present case application though moved by non-applicants under Order 39, Rules 1 and 2 read with Section 151 of CPC, trial Court exercised power under Order 39, Rules 1 and 2 of CPC only while passing order of relevant date whereby Defendant No. 3 was directed to be put in possession of shop in question and applicants were temporarily restrained from interfering with his possession - — Provisions of Section 36 of CPC relate to execution of decree and are also deemed to apply to execution of orders - However, considering controversy in case, order of relevant date being interlocutory order of temporary nature had come to end or merged in order by which suit was disposed of - Once having held that said order has come to end, it loses its force and effectiveness and same is not executable via Section 36 of CPC since same is not in existence - In view of facts and circumstances of case, provisions of Section 36 of CPC not attracted and, therefore, application which was filed by non-applicants for issuance of warrant of possession under Section 36 of CPC was not maintainable - Similarly contingencies contemplated under Order 21, Rule 32(1) of CPC were entirely different and operate in different area altogether and cannot be equated with issue in question and, therefore, same also could not be said to be attracted in present case - Consequently, impugned order cannot be sustained in law, same is quashed and set aside - Revision allowed.
 Similarly, it is also not necessary that suit should be disposed of only on merits in order to bring an end to interim order. What is contemplated in law is that such interim order would continue to operate till suit is disposed of one way or the other and would come to an end on the day suit is disposed of. Whether suit is disposed of for want of prosecution or on merits is not the criteria to decide existence of interim orders. These orders by their very nature are temporary and remain in force only during the pendency of the suit and come to an end when the suit is disposed of one way or the other.

Bombay High Court

Ramesh Ramaji Akre And Ors. vs Smt. Mangalabai Wd/O Pralhad And ... on 8 April, 2002

Equivalent citations: 2002 (3) MhLj 579

D.D. Sinha, J.

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DH can make successive application for possession in execution proceeding

It is now well settled that although an application for removal of obstruction is required to be taken within thirty days, there is nothing to prevent the decree-holder from making a successive application for possession and in case such an application is resisted, the limitation for filing the application for removal of the obstructions starts from the date of the second obstruction and not from the date of the initial obstruction. This position is sufficiently clarified in Subhan Bi v. Abdul Samad, 1978 Mah LJ 519.1

Citation;1978MhLJ519

IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. No. 361 of 1968

Decided On: 01.03.1978

Appellants: Subhan Bi Sheikh Noor and another

Vs.

Respondent: Abdul Samad Haji Abdul Raheman and others

Hon'ble Judges/Coram:
B.A. Masodkar and M.D. Kambli, JJ.

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Whether court can issue possession warrant during pendency of objection filed by third party under O21 R 97 of CPC?

 In short the

aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes

pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-

holder the remedy available to the decree-holder against such an obstructionist is only under Order

21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as

that course would amount to bypassing and circumventing the

procedure laid down under Order 21, Rule 97.. ..............."1

Supreme Court of India

Shreenath & Another vs Rajesh & Others on 13 April, 1998

Citation;1998IIIAD(SC)624, AIR1998SC1827, 1998(3)ALLMR(SC)213, 1998(3)ALT1(SC), 1998 (2) AWC 1403 (SC), 1998(2)JLJ187(SC), JT1998(3)SC244, 1998-2-LW418, 1998(2)MPJR(SC)1, 1998(2)MPLJ180, 1998MPLJ180(SC), RLW1998(2)SC279, 1998(2)SCALE725, (1998)4SCC543, 

Bench: K Venkataswami, A Misra

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