{"id":72390,"date":"1961-12-12T00:00:00","date_gmt":"1961-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhuma-venkata-seshayya-vs-bhuma-venkata-satyanarayana-and-on-12-december-1961"},"modified":"2015-11-10T19:18:19","modified_gmt":"2015-11-10T13:48:19","slug":"bhuma-venkata-seshayya-vs-bhuma-venkata-satyanarayana-and-on-12-december-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhuma-venkata-seshayya-vs-bhuma-venkata-satyanarayana-and-on-12-december-1961","title":{"rendered":"Bhuma Venkata Seshayya vs Bhuma Venkata Satyanarayana And … on 12 December, 1961"},"content":{"rendered":"
Andhra High Court<\/div>\n
Bhuma Venkata Seshayya vs Bhuma Venkata Satyanarayana And … on 12 December, 1961<\/div>\n
Equivalent citations: AIR 1963 AP 44<\/div>\n
Author: C Reddy<\/div>\n
Bench: P C Reddy, Venkatesam<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Chandra Reddy, C.J.  <\/p>\n
 1. This appeal brought by the judgment-creditor in O. S. 151 of 1956 against the order of the Subordinate Judge, Vijayawada granting a temporary injunction restraining the appellant from proceeding further with the execution of his decree, raises a question bearing on Order 39 Rule 1 C. P. C. The facts of the case lie in a narrow compass and are not in dsipute.\n<\/p>\n
 2. In execution of a decree obtained by the appellant on the foot of a promissory note in O. S. No. 151 of 1956 on the file of the District Munsif’s Court, Vijayawada against the father of respondents 1 to 3, who was the manager of their joint family, the joint family properties of these respondents were brought to sale on 6-7-1957 and were purchased by the 4th respondent. Before the sale could be confirmed, respondents 1 to 3 instituted O. P. No. 46 of 1957 for permission to file a suit in forma pauperis for a declaration, inter alia, that the decree resulting in the sale as also another decree were not binding on them and for partitioning the B schedule properties into four equal shares and to put them in separate possession of their shares. Pending the petition they sought a temporary injunction preventing the 4th respondent from proceeding further with the execution of the decree in E. P. No. 202 of 1957. An interim injunction was granted and this was made absolute subsequently in spite of the opposition of the appellant, Aggrieved by this order, the execution creditor has brought this appeal.\n<\/p>\n
 3. It is urged in support of this appeal by Sri C. V. Narasimha Rao that a temporary injunction could not issue in this case as it does not fall within the terms of Order 39. On the other hand, the counsel for the 4th respondent maintains that this case is governed by Order 39 Rule 1 (c) as the further execution of the decree would cause injury or loss to the plaintiff within the scope of clause (c) of Rule 1 of Order 39. It now falls to be decided whether the confirmation of the sale in this case would constitute an injury within the mischief of clause (c).\n<\/p>\n
 4. Order 39 Rule 1, so far as it is material for this enquiry, reads:  <\/p>\n
\n   \n\n \"Where in any suit it is proved by affidavit or otherwise  \n  X  X                      X                      x    \n \n\n (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury or loss to the plaintiff the Court may by order grant a temporary injunction to restrain such act or make\nsuch  other  order  for  the  purpose  of  staying  and preventing the  wasting  .....  or otherwise causing\ninjury  or  loss   as   the  Court  thinks   fit,   until   the disposal of the suit or until further orders\".   \n \n\n<\/pre>\n
 5. It is well recognised that the power of the Court to grant a temporary injunction is controlled by Order 39, and unless a case falls within any of the matters mentioned in Rules (1) and (2), the Court has no power to grant a temporary injunction. The clause that is invoked in this case is the latter part of clause (c) i.e., “otherwise causing loss or injury to the plaintiff”. Could it be predicated that the judgment-creditor was causing injury to the respondents within the meaning of clause (c) ? The alleged injury is the execution of the decree, which was lawfully obtained by the appellant against the father of respondents 1 to 3. That was a decree passed by a Court of competent jurisdiction and, as such, it could not be described as illegal. If the decree is legal and, therefore, the decree-holder is entitled to execute it, could it be posited that execution could not be levied against the shares of the sons, as there has since been a disruption of joint status by the filing of the suit? We are unable to accede to the contention urged on behalf of the respondents.\n<\/p>\n
 6. It is to be borne in mind that the division in status is supposed to have been brought about by the presentation of the original petition for filing a suit in forma pauperis after the sale. It is not disputed that, at the time when the decree was made against the father of respondents 1 to 3, the family remained joint and the father was the manager of that family. It may, therefore, be taken that the decree was obtained against the father as a. representative of the joint family in respect of joint family liability. Consequently it would be binding on the respondents and as such the entire joint family property can be proceeded against in execution notwithstanding the fact that the sons were not made eo nomine parties to the suit.\n<\/p>\n
 That   being the   legal   position, the   execution creditor is entitled to seize the shares of the sons in execution of the decree unless the sons succeed in proving that the debt, which was the basis of the decree, was incurred by the father for an immoral  or illegal  purpose,   even  if the   partition  of the   joint   family   was   effected   subsequent   to the passing of the decree.    The fact that subsequent to the decree there was a partition would not make any difference   and   the   decree   could   be  executed not  only  against  the   father  but   also   against his sons,   who   are   constructive   parties,   it   being   immaterial  whether the   family   continues   to   remain joint     or    became     divided     subsequently.     The severance of status brought about by the filing of the suit does not in any way affect the right of the  decree-holder to reach  the  shares  of  the sons in   execution.     Therefore,   when   the   appellant   initiated   proceedings     in execution   of  the     decree which has not been set aside against the sons who were bound by the decree, it could not be postulated  that  he  was  committing an   injury  within  the meaning     of   clause      (c).    The argument   of   the Counsel for the respondents that the action of the appellant in bringing to sale the interest of the sons after partition in the joint family should be regarded as an injury because after the division of the family the power of the father to alienate the family properties for the debts comes to an end and the only remedy available to a creditor to enforce the liability against the sons is to bring a separate suit is inadmissible.\n<\/p>\n
          7. The right of the judgment-creditor to execute his decree is based not merely on the power of the father to sell the family properties for the discharge of his debts but also on the theory that the judgment obtained against a person sued in a representative capacity is a judgment   against   every   member   covered   by   the  representation and the interest of every such member is bound to satisfy that liability, whether, there was a division or not subsequent to the decree. Even though the father’s power to discharge his debt by selling the share of his sons in the property might no longer exist as a result of the partition, the right of the judgment-creditor to seize the erstwhile coparcenary property remains unaffected and undiminished.\n<\/p>\n
 8. In   the   words   of their  Lordships     of   the Supreme Court in  S.  M.   Jakati v.  S.   M.   Borkar, AIR<\/a> 1950 SC 282, the result of the partition in a joint family is nothing more than a. change in the mode  of enjoyment  and what was  held jointly  is by   the  partition   held  in  severalty   and therefore, the   attachment   of the   whole   co-parcenary  estate would not be affected by the change in the mode of   enjoyment  because   the   liability  of   the   share which the sons  got on partition  remains unaffected.    It follows that the interests of the sons even after partition will be liable for the  decree which has been   obtained   against the   father,      who      is deemed to have represented the joint family.    This view   of   ours   is   amply   supported by   several   of the pronouncements   of   the   Supreme     Court, the latest of them being  and  also by   a  Full   Bench   decision   of  the Madras     High Court in Venkata Narayana v. Venkata Somaraju, ILR 1937 Mad 880  :   (AIR 1937 Mad 610)   (FB).\n<\/p>\n
 9. Even   otherwise,   this  case would   fall  outside the pale of clause (c).    It is to be remembered  that,   at the  time  of execution,   the properties remained  joint.    The  appellant  attached   the  properties  before  judgment  and   subsequent      to   the making of the decree he levied execution,  brought the properties to sale and they were purchased by the 4th respondent at a time when respondents  to   3 and  their  father constituted   a  joint   family. It  is  only  to  avert  the   confirmation   of  the  sale that   the   original   petition has   been   filed.     That being the position,   the attachment of the properties   is   not   ended   by   the partition.     When   once the  decree was   put  in   execution  and the  properties   brought   to    sale,    the    subsequent   partition would  not  be  a bar  to  the  confirmation     of the sale.    In this position,  we fail to see how the further   execution   of  the   decree   could   be   considered to be an injury  within  the  connotation of clause (c).    The further execution cannot be regarded as a wrongful   act.     The   appellant   was   pursuing his legitimate remedies in executing the decree.    There is     another    circumstance    which    disentitles    the respondents to invoke the statutory provision in question. They were made parties to the execution proceedings and it is in their presence that the sale was held.\n<\/p>\n
 10. The question as to whether the execution of a decree lawfully obtained would constitute an injury as defined in Clause (c) of Rule 1 of Order 39 was considered by a Full Bench of this Court in Appalanarasimha Raju v. Seethayamma,  (FB) and it was answered in the negative. It was ruled there that Order 39 Rule 1 would not take in legitimate acts of persons who pursued the remedies allowed to them by law. The Full Bench approved of Venkanna v. Venkata Rao, 1957-1 Andh WR 274 : 1957 Andh LT 90 : ((S) AIR 1957 Andh Pra 453) which interpreted Order 39 Rule 1 (c) and the correctness of which was canvassed before them.\n<\/p>\n
 11. In 1957-1 Andh WR 274  :   1957 Andh LT 90   :   ( (S)   AIR   1957  Andh  Pra  453)   the  respondent obtained   a decree   against  the  father  of the appellants on the basis of a promissory note and was seeking  to   execute   the   decree   by   putting   to  sale the   properties  of   the   father.     The   sons   laid   an action for  a  declaration   that  the   suit   promissory note was not binding   upon them for the   reason that the debt in question was tainted with immorality and illegality and for a permanent injunction  restraining the  defendant  from  executing  the decree against the share of the minors. When the matter came up in appeal to this Court, it was held by a Division Bench of this Court, negativing the contention that the amended  rule enabled  the Court to grant an  interim  injunction because the  shares  of the minors,   if sold  and  purchased  by third  parties would  result  in   injury   and  loss   to   the     plaintiff, that  the  injury or  loss     contemplated     by     the amended rule would not comprehend an injury or loss   caused  by   a   person   pursuing   his   legitimate remedies.    The doctrine of 1957-1 Andh. WR 274   : 1957   Andh  LT  90   :    ( (S) AIR  1959   Andh   Pra 453)   would   govern  with full   vigour     the   instant case.\n<\/p>\n
 12. In the circumstances, we allow the appeal and set aside the order of the trial Court. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Andhra High Court Bhuma Venkata Seshayya vs Bhuma Venkata Satyanarayana And … on 12 December, 1961 Equivalent citations: AIR 1963 AP 44 Author: C Reddy Bench: P C Reddy, Venkatesam JUDGMENT Chandra Reddy, C.J. 1. This appeal brought by the judgment-creditor in O. S. 151 of 1956 against the order of the Subordinate Judge, Vijayawada […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,8],"tags":[],"class_list":["post-72390","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nBhuma Venkata Seshayya vs Bhuma Venkata Satyanarayana And ... on 12 December, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhuma-venkata-seshayya-vs-bhuma-venkata-satyanarayana-and-on-12-december-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhuma Venkata Seshayya vs Bhuma Venkata Satyanarayana And ... on 12 December, 1961 - 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