JUDGMENT
C.Y. Somayajulu, J.
1. Minor petitioner-plaintiff in I.A. No. 1780 of 2002 in O.S. No. 427 of 2002 on the file of the court of Principal Senior Civil Judge, Kakinada, is the appellant. The suit was filed by the maternal grand father of the plaintiff as her guardian inter alia for a declaration that minor plaintiff is the absolute owner and possessor of the property specified in the schedule appended to the plaint which hereinafter would be referred to as ‘suit property’ and for a consequential injunction restraining the first respondent-first defendant from bringing it to sale in E.P. No. 132 of 2002 in O.S. No. 262 of 1999 on the file of the Court of II Additional Senior Civil Judge, Kakinada, or in any other proceeding relating to O.S. No. 262 of 1999, alleging that the mother of the minor plaintiff gifted the suit property to her under a registered gift deed dated 3-11-1999 and that the same was accepted on her behalf by her maternal grand father, who has been acting as her guardian and looking after her affairs after her father deserted her and her mother (2nd respondent) after incurring heavy debts for his immoral activities. First respondent (1st defendant) who is a professional money lender, had obtained the signatures of her mother and father on several blank documents, cheques, promissory notes etc., by force in Kakinada police station in 1999 and so second respondent became a puppet in the hands of the first respondent and is acting in collusion with the first respondent and consequently first respondent obtained a collusive decree against the second respondent in O.S. No. 262 of 1999 on the file of the Court of I Additional Senior Civil Judge, Kakinada, for Rs. 4,06,933/- on the basis of a promissory note and is taking steps to bring the suit property to sale in E.P. No. 132 of 2002 to jeopardize her rights and so the first respondent may be restrained from bringing the suit property to sale in execution of the decree in O.S. No. 262 of 1999 pending disposal of the suit.
2. The case, in brief, of the first respondent is, since second respondent failed to repay the amount of Rs. 6,00,000/-borrowed by her from him under two promissory notes dated 15-9-1999 and 20-9-1999, he filed O.S. No. 262 of 1999 for recovery of the amount due under the promissory note dated 20-9-1999 and got attached the suit property in I.A. No. 1244 of 1999. Since the second respondent fraudulently transferred her property in favour of the appellant, he filed I.P. No. 9 of 1999 to declare the second respondent as insolvent and to cancel the gift deed dated 3-11-1999 executed by the second respondent in favour of the appellant in respect of the suit property. The said I.P. No. 9 of 1999 was allowed and the second respondent was declared as insolvent. Since second respondent engaged an Advocate and filed written statement in O.S. No. 262 of 1999 the contention that the decree in O.S. No. 262 of 1999 is collusive is not true. In fact, second respondent got the suit filed in the name of the appellant with a view to delay the execution of the decree obtained by him and so appellant is not entitled to the injunction sought.
3. Respondent Nos. 2 and 3, who are the mother of the appellant and official receiver respectively chose to remain ex parte.
4. Exs.A-1 to A-8 were marked on behalf of the appellant and Exs.B-1 to B-3 were marked on behalf of the first respondent. The Court below holding that in view of the ratio in Cotton Corporation of India Limited v. United Industrial Bank Limited and Ors. , it has no power to grant an injunction restraining a person from instituting or prosecuting a proceeding in a Court of coordinate or superior jurisdiction and also on the ground that appellant has no prima facie case, dismissed I.A. No. 1780 of 2002 by the order under appeal. Hence, this appeal.
5. The point for consideration is:
“Whether the appellant is entitled to the injunction sought?”
6. The main contention of the learned counsel for the appellant is that the Court below without keeping in view the facts of this case and the binding precedents of this Court in Princess Fatima Fouzia, Appellant v. Walashan Prince Moazzam Jah Bahadur, Respondent 1980 (1) ALT 221 = AIR 1980 A.P. 315 and Yelamanchili Venkateswara Rao, Appellant v. Tathineni Venkata Subbayya and Anr. erroneously basing on the ratio in the Cotton Corporation case (1 supra), which has no application to the facts of this case, dismissed the petition of the appellant. It is his contention that the Court below was in error in not taking into consideration the conduct of the first respondent in not bringing to the notice of the Court which tried O.S. No. 262 of 1999 about his filing of I.P. No. 9 of 1999 against the second respondent and thereby suppressed material fact from the court, which prima facie establishes the collusion between respondents 1 and 2 because second respondent did not even contest I.P. No. 9 of 1999. It is his contention that since the appellant was neglected and deserted by her parents i.e. the second respondent and her husband, she is being brought up by her grand father who filed the suit as her guardian and since the second respondent, in collusion with the first respondent, is trying to defraud the appellant by allowing the suit property being brought to sale in execution of the collusive decree in O.S. No. 262 of 1999 appellant is entitled to the injunction sought more so because the claim petition filed by the appellant under Order 21 Rule 58 of C.P.C. to raise the attachment over the suit property is pending and so a direction may be given to the Court below to club the claim petition and the suit. The contention of the learned counsel for the first respondent is that since there is no material on record to show the collusion between the first and second respondents and since the appellant is claiming a right over the suit property through a gift deed dated 3-11-1999 i.e., subsequent to the suit promissory note covered by O.S. No. 262 of 1999, it is prima facie clear that collusion is between the appellant and the second respondent, but not between the respondents 1 and 2 and so it is clear that appellant has no prima facie case and so the Court below rightly negatived the claim for injunction by the appellant.
7. O.S. No. 262 of 1999, the decree in which is sought to be stayed by the appellant, was filed on the basis of a promissory note dated 20-9-1999 executed by the second respondent in favour of the first respondent for Rs. 4,00,000/- on 12-11-1999 and was decreed on 18-3-2002. The judgment in O.S. No. 262 of 1999 shows that second respondent filed her written statement alleging that the promissory note dated 20-9-1999 was brought into existence by the first respondent with the assistance of the scribe and the attestor, to gain wrongfully at her expense, and did not go into the witness box. Significantly second respondent did not even take a plea that her signatures were obtained in Kakinada police station, as alleged by the appellant in the plaint in her suit. The gift deed in favour of the appellant in respect of the suit property was executed by the second respondent on 3-11-1999 i.e., after the execution of the promissory note dated 20-9-1999 which is the subject matter of O.S. No. 262 of 1999. The contention of the appellant that second respondent with a view to defraud her, colluded with the first respondent and got filed O.S. No. 262 of 1999, stands belied by the fact that the gift deed relied on by the appellant was executed subsequent to the second respondent executing a promissory note in favour of the first respondent. No ordinary prudent person would make a gift of valuable property in favour of a person whom he or she wishes to defraud. Gift would be made in favour of a person towards whom the donor has affection and in whose welfare the donor is interested. Therefore, the contention of the appellant that the second respondent, with a view to defraud her, did not contest the suit O.S. No. 262 of 1999, is ex facie unacceptable.
8. First respondent failing to mention his instituting I.P. No. 9 of 1999 in O.S. No. 262 of 1999 is of no consequence since reference to the I.P. is wholly irrelevant in a suit for recovery of money filed on the basis of a promissory note. Therefore, no inference can be drawn against the first respondent for his not making a mention about his instituting I.P. No. 9 of 1999 against the second respondent, in O.S. No. 262 of 1999. Obviously because second respondent executed a gift deed in respect of the suit property in favour of the appellant on 3-11-1999, after having borrowed a huge amount from him, first respondent in order to safeguard and protect his interest, must have filed I.P. No. 9 of 1999.
9. The conduct of the second respondent in getting a gift deed registered in respect of the suit property in favour of the appellant on 3-11-1999 after having borrowed huge amount of money from the first respondent, prima facie shows the second respondent had an intention to avoid payment of the debt due to the first respondent. So this is a case where the first respondent can invoke Section 53 of the Transfer of Property Act also. In the above circumstances, it cannot be said that the appellant has a prima facie case, more so because the suit is not for cancellation of the decree in O.S. No. 262 of 1999, but is one for a declaration of her title to the suit property on the ground of the first respondent filing I.P. No. 9 of 1999 against the second respondent for setting at naught the gift deed dated 3-11-1999 executed by the second respondent in favour of the appellant.
10. I find force in the contention of the learned counsel for the appellant that the court below was in error in applying the ratio in Cotton Corporation of India Limited case (1 supra) to the facts of this case. I feel it relevant to extract Section 37 of the Specific Relief Act, 1963. It reads:
(1) “Temporary injunctions are such as are to continue until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.”
Since the petition under appeal is filed under Order 39, Rule 1 of C.P.C. it is Sub-section (1) of Section 37 but not Sub-section (2) of Section 37 of Specific Relief Act, 1963, extract above that would govern the proceedings in the I.A. Section 41 of Specific Relief Act, 1963 relates to perpetual injunctions. That section need not be taken into consideration for deciding this petition. In para 8 of judgment in Cotton Corporation Case (1 supra), the Supreme Court observed as follows.
“It is, therefore, necessary to unravel the underlying intendment of the provision contained in Section 41 (b). It must at once be conceded that S. 41 deals with perpetual injunction and, it may as well be conceded that it has nothing to do with interim or temporary injunction which, as provided by Section 37, are dealt with by the Code of Civil Procedure. To begin with, it can be said without fear of contradiction that anyone having a right that is a legally protected interest complains of its infringement and seeks relief through court must have an unhindered, uninterrupted access to law Courts.”
Therefore it is easy to see that Section 41 (b) of Specific Relief Act, 1963, cannot be invoked for deciding a petition under Order 39 Rule 1 of C.P.C. and so the Court below was in error in dismissing the petition of the appellant on the ground that it has no power under Section 41 (b) of The Specific Relief Act, 1963 to grant an injunction restraining the person from instituting a proceeding in a Court of co-ordinate or superior jurisdiction. The point for consideration for deciding this petition would be whether the appellant established prima facie case, balance of convenience and irreparable loss. Reference to Section 41 (b) of Specific Relief Act, 1963, is wholly irrelevant for deciding this petition.
11. As stated earlier, appellant is not able to establish prima facie case which is the sine qua non for granting an injunction under Rules 1 and 2 of Order 39 C.P.C. more so because injunction restraining execution of the decree in O.S. No. 262 of 1999 obtained by the first respondent against the second respondent is not and cannot be a consequential relief to the primary relief of declaration of title to the suit property sought by the appellant in the suit, in as much as there is no warranty of title in court sales Decree holder can bring anybody’s property to sale. If the person whose property is attached and brought to sale is aggrieved, can or would approach the court under Rule 58 or Rule 97 of Order 21 C.P.C. and the executing court would decide the question as to whether he is the owner of the property or not.
12. It is the case of appellant that she filed a petition under Order 21 Rule 58 of C.P.C. for raising the attachment over the suit property. So the executing court would decide whether the attachment over the suit property can be raised or not, and for that purpose, no injunction restraining the first respondent from executing the decree in O.S. No. 262 of 1999 need be granted in a suit for declaration of title to the suit property filed by the appellant. In the circumstances of the case, the balance of convenience is also not in favour of the appellant, but is in favour of the first respondent. Appellant would not be put to loss much less irreparable loss even if sale is held because if she is really the owner of the property, her title will not be in jeopardy because the decree in O.S. No. 262 of 1999 is not passed against her and was obtained against the second respondent. If the second respondent has title to any part of the suit property only would the purchaser acquire title thereto. If not he would not acquire any title to the suit property.
13. Since the appellant has no prima facie case and since balance of convenience also is not in her favour and since she would not be put to any loss, much less irreparable loss if injunction is not granted, she is not entitled to the injunction sought. The point is answered accordingly.
14. With regard to the contention relating to clubbing of E.P. in O.S. No. 262 of 1999 and O.S. No. 427 of 2002 filed by the appellant, appellant without filing an application for that purpose in the proper court and without giving notice to all the concerned, cannot seek such relief in this C.M.A. Therefore, the appellant is at liberty to file a petition for the said purpose in appropriate court and the court would decide that petition on its merits.
15. Before parting with the case, I have to state that the trial court should dispose of the case on merits without being influenced by the observation made in this order which are made only for the purpose of disposal of appeal.
16. The appeal therefore is dismissed. No costs.