1. This application by the plaintiff is directed against an order of the Additional District Judge of Monghyr affirming an order of the Munsif second Court there, refusing to grant a temporary injunction. The relevant facts are these. There is a house belonging to the opposite party who gave it on rent, according to their case, to one Ram-kishun, while according to the case of the petitioner jointly to the petitioner and the said Ram-kishun. It appears that the petitioner and the said Ramkishun are partners in a business. In the year 1950 they entered into an agreement with the opposite party for the purchase of the house.

2. There were some slight variations in the agreement. According to the petitioner as the opposite party did not, in pursuance of the above agreement, execute a sale deed in favour of the petitioner and Ramkishun, they instituted a suit for specific performance of the agreement. That suit was dismissed and they have preferred a first appeal in this Court which is still pending. In the meantime, the opposite party started a proceeding for eviction against Ramkishun only and succeeded in getting an order of eviction passed in their favour.

3. An appeal taken by Ramkishun against the order of the Controller failed. In execution of the eviction order, which has the force of a civil court decree, the opposite party made both the petitioner as well as the said Ramkishun as judgment-debtors against whom they sought execution. The petitioner made an application under O. 21, R. 58 of the CPC alleging that he not being the judgment-debtor, the execution as against him for delivery of possession of the house could not be maintained and he claimed to be in possession of the house in his own light.

4. This application, however, was dismissed as having been filed at a very late stage. An application in revision was filed in this Court against the order of dismissal but that application was also dismissed by this Court. Thereafter the petitioner filed a title suit under the provision of O. 21, R. 63 of the CPC for declaration of his right as being a tenant of the house and for injunction restraining the opposite party from dispossessing the petitioner from the house in execution of the decree for eviction passed against Ramkishun.

5. He also made an application for a temporary injunction restraining the opposite party from dispossessing him pending the hearing of the suit. That application was rejected by the court of first instance, and its order was affirmed by the lower appellate court, as stated above. Hence, the present civil revision application has been filed in this Court. It may be noted that subsequently after the petitioner became unsuccessful in the claim case his name was expunged from the execution petition and the execution proceeded only against Ramkishun who filed an application that he has vacated the house.

6. Mr. Lalnarain Sinha appearing for the petitioner has not forward two contentions, namely. (1) that if the petitioner was a covenant with Ramkishun the eviction order could not be binding on him as it was not passed against him and (2) that if he is not a tenant and is only a trespasser, then he could not be evicted Without there being a decree for possession against him. On behalf of the opposite party Mr. Varma has raised an objection that no injunction could be granted under any of the provisions of the Code of Civil Procedure and, therefore, this application should be rejected.

7. In support of his contention Mr. Verma has referred to the proviso made by the amendment of the rules by the Patna High Court to the provisions of O. 39, R. 1 of the CPC and has contended that the petitioner was not entitled to have any injunction issued in his favour. O. 39, R. 1 states that where in any suit it is proved by affidavit or otherwise (a), that any property in dispute in a suit, is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.

8. Under the rules made by the High Court of Judicature at Patna under Section 122 of the CPC, the following provisos have been added to the rule:

“Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 of the Specific Relief Act (Act 1 of 1877).

Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the court executing the decree.”

9. Relying on the second proviso referred to above, Mr. Verma has contended that in the present case the petitioner did make an application under O. 21, R. 58 of the CPC and was thus not entitled to have any temporary injunction issued in his favour. True it is that where an injunction as sought for under the provisions of O. 39 R. 1 of the CPC, the proviso referred to above debars a Court from granting a temporary injunction to a person who could lawfully prefer a claim under the provision of the Code of Civil Procedure.

10. This proviso, however, does not apply where the prayer for a temporary injunction is not sought for under R. 1 of O. 39. Mr. Sinha appearing for the petitioner has conceded that if his case fell within the purview of the provisions of R. 1, he could not get a temporary intunetion. But he has submitted that R. 1 in terms could not apply to his case as it was not a case where the property in dispute in the suit of the petitioner is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree or where the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors. His contention is that the prayer for temporary injunction sought for by the petitioner comes within the provision of R. 2 of O. 39, and not R. 1 of that order.

11. Order 39. R. 2(1) states that in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Mr. Sinha has pressed the argument that his case is covered by the terms “other injury of any kind” and that the suit that the petitioner has brought is a suit for restraining the defendant from committing other injury to the petitioner. The argument seems to be well founded and must prevail.

12. Mr. Verma in support of his contention has placed reliance on the cases of Nathmal Agarwala v. Mukhanlal Rajgharia, 1953 BLJR 130 : (AIR 1953 Pat 2551 (A), Subramanian v. Seetarama Aiyar, AIR 1949 Mad 104 (B), Kripa Natha Chakravarty v. Rup Chand Lunawat, (S) AIR 1955 Assam 156 (C) and Hemant Kumar v. Ayodhya Prasad, AIR 1957 Madh. B. 95 (D). In the first case, namely 1953 BLJR 130 : (AIR 1953 Pat 255) (A), it was held that where after the dismissal of an application under O. 21, R. 58 of the CPC, the plaintiff instituted a suit under R. 63 asking for a declaration that the properties proceeded against in the execution case were his properties and were not liable to attachment and sale and made a prayer for issue of a temporary injunction restraining the decree-holder from taking delivery of possession, the second proviso of the Patna amendment or O. 39, R. 1 of the CPC was a bar to such a prayer being granted. That decision has no application to the present case where as already stated, the petitioner does not claim for a temporary injunction under the provisions of O. 39, R. 1 of the CPC. The question whether such an injunction could be granted under R. 2 of that Order was not under consideration in that case.

13. In AIR 1949 Mad 104 (B) a Bench of the Madras High Court had to consider the meaning of the expression “restraining the defendant from committing other injury of any kind,” used in R. 2 of O. 39 of the CPC in connection with the execution of a compromise decree which had not been set aside and it was held that execution of such a decree would not amount to committing an injury and, therefore, Injunction could not be granted against the decree-holder restraining him from proceeding with the execution under the above rule. That case, no doubt supports the contention of Mr. Verma.

14. It was contended in that case before their Lord-hi that the decree was not binding on the appellants as they were not parties to the same. But this contention was rejected and their Lordship held that the respondent could not be held to be committing any legal injury by executing the decree passed in his favour. So far as the execution of a decree against the judgment-debtor is concerned I am in perfect agreement with the view taken by their Lordships in that case that each an execution could not amount to committing an injury and therefore, an injunction could not be granted under R. 2 of O. 39 of the Code. But with utmost respect to them I am unable to agree with the view that if under the colour of an execution of a decree a person who is not a party to the decree is going to be affected, the person executing the decree does not commit any injury to that other person or that other person does not suffer any injury at his hands.

15. In my opinion, if a decree is sought to be enforced against a stranger to the decree which is not binding on him, he has a right to maintain a suit for an order of injunction restraining the decree-holder to enforce the same as against him as the enforcement of such a decree against him would amount to committing an injury by the decree-holder and as such he is entitled under O. 39, R. 2 of the CPC to make a prayer for a temporary injunction restraining the decree-holder from proceeding with the execution of the decree as against him pending the decision of the suit.

16. In (S) AIR 1955 Assam 156 (C), a Bench of the Assam High Court held that a lawful exercise of a right cannot be described as an injury and that so long as the party is acting in the exercise of a right which the law recognises, it cannot be said that the party is committing any wrong leading to any injury. In that case there was a dispute with respect to the right of access over a certain pathway. A proceeding under Section 147 of the Cr PC was started between the parties and that ended in favour of the defendant who was held to be entitled to use the pathway and interference with his right of way was prohibited. The plaintiff thereafter instituted a suit for a permanent injunction restraining the defendant from exercising the right of way over the path in question and prayed for a temporary injunction.

17. Order 39 rule 1 admittedly did not apply to the case. It was, however, argued before their Lordships that under rule 2 of that order a temporary injunction could be granted. That argument was repelled by their Lordships on the ground that the defendant being entitled to exercise the right of way by virtue of the decision in the proceeding under Section 147 of the Cr PC, could not be said to be committing any injury by exercising that right. There can be no doubt about the correctness of this decision. There the plaintiff against whom an order had been passed in the proceeding referred to above attempted to restrain the defendant, who under that order was exercising legally the right of way from exercising the same. The case, therefore, could not come under rule (2) as no injury was being committed by the defendant. That case, however, has no application to the facts of the present case where the petitioner was not a party at all to the proceeding in which the order under execution was passed.

18. In AIR 1957 Madh. B. 95 (D) certain persons obtained a mortgage decree against one Madanlal and when that decree was put in execution, his minor son instituted a suit for declaration that the property against which the mortgage decree was passed being ancestral property, the mortgage and the decree on its basis were void and it, therefore, could not be sold in execution of the decree and for an injunction restraining the decree-holders from proceeding with the execution by sale of the mortgaged property. It was not the case of the plaintiff in that suit that the debt in respect of which the mortgage decree was passed was for an immoral or illegal purpose and that being so, the debt was binding on the son even though that may not have been for legal necessity.

19. On that ground it was held in that case that the decree-holder by executing a decree which was binding on the plaintiff could not be said to have been committing any injury so as to entitle the plaintiff to obtain an order of a temporary injunction under rule 2 of Order 39. That case has no application to the present case where, as already observed, the decree under execution is binding on the petitioner.

20. On a consideration of the authorities referred to above, and of the provisions of order 39, rule 2, it is manifest that where a person brings a suit for a declaration that a certain decree is not binding on him as lie was not a party to the proceeding in which the decree was passed, and for permanent injunction restraining the decree-holder from executing the decree as against him, he is entitled under the provisions of Order 39, rule 2 of the CPC to make a prayer for a temporary injunction inasmuch as the decree-holder in executing the decree as against him does commit an injury which he is entitled to avoid by institution of a suit and by having an order of injunction in his favour restraining such decree-holder to proceed against him, provided, he satisfies other conditions which may enable him to get the same.

21. The next question is whether it is a fit case in which injunction should be granted. Counsel for the opposite party has contended that in this case the eviction order was passed in July, 1953, and the petitioner has successfully thwarted the attempt of the decree-holders to get the fruits of their decree; but for that they must thank themselves. From the order under appeal it appeal's that in the suit for specific performance of contract referred to above Nirmalendu Mukherji, opposite party No. 2 (one of the decree-holders) appears to have admitted in his deposition that the petitioner was a co-tenant along with Ramkishun. If that be so, it was incumbent on him to make the petitioner a party to the eviction proceeding. That not having been done, the eviction order could not, in any event, be binding on the petitioner and as such he could not be legally evicted from the house in execution of that order.

22. The petitioner, therefore, has established to have a prima facie case in the suit that he has instituted. Even the balance of convenience is in favour of the petitioner. He is living in the house in question on payment of rent and it will be useless for him to continue the suit if he is evicted therefrom. In other words, the suit itself will become infructuous inasmuch as after eviction he having taken another house would not think of coming to the house in question after the suit is decreed in his favour. By refusing temporary injunction, therefore, he will be deprived of the right claimed in the suit. It has then been contended on behalf of the opposite party that the Court of appeal below having refused to grant injunction this Court should not interfere in Civil revision.

23. In my view, the Court in refusing to grant injunction has failed to exercise its discretion in accordance with the well settled principles of law and has acted in an arbitrary manner. It is thus manifest that the Court of appeal below has failed to exercise its jurisdiction vested in it by refusing to grant an injunction. The view that I have taken gains support from a Bench decision of this Court in Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad, AIR 1951 Pat 469 (E), where it has been held that the Court has to determine in granting injunction whether there is a bona fide contest between the parties and whether there is a fair and substantial question to be decided as to the rights of the parties in the suit and that if the Court has refused to grant a temporary injunction by exercising its discretion against the well settled judicial principles, its order suffers from its failure to exercise jurisdiction vested in it by law and the High Court ought to interfere in revision for the ends of justice.

24. In this case, as already stated, the petitioner was made a party in the execution proceeding, but subsequently his name was expunged from the proceeding. Therefore, apparently, the decree-holders do not seek to execute the decree as against him. The execution petition as it stands now is only against Ram Kishun who, however, has already filed an application that he has vacated possession. That being so, I do not see what the decree-holders want by executing the eviction order unless they intend to dispossess the petitioner from the house. On behalf of the petitioner Mr. Sinha has frankly conceded that the decree-holders may execute their decree to which the petitioner will have no objection if they do not propose to dispossess the petitioner from the house. In my view, this is a fit case in which a temporary injunction should be granted under the provisions of O. 39, R. 2 of the CPC, inasmuch as by seeking to dispossess the petitioner from the house without obtaining any decree against him the decree-holders are committing injury to him. In the result, the application is allowed with costs and the rule is made absolute. The order of the Court below refusing to grant a temporary injunction is set aside and the opposite party decree-holders are restrained from dispossessing the petitioner from the house in question in execution of the decree for eviction passed in their favour referred to above pending the decision of the suit. Hearing fee: Rs. 32.

H.G.P

25. Application allowed.