1. Heard learned counsel for the parties.
2. This civil revision application is directed against the order dated 27.9.96 passed by Second Additional District and Sessions Judge, Saran in Miscellaneous Appeal No. 72/84.
3. The learned appellate court confirmed the order passed by the 1st. Subordinate, Judge, Saran, in Title Suit No. 273/93. By the said order the trial court granted temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure directing the defendant/petitioner not to disturb the possession of the plaintiff opposite party.
4. The relevant facts relating to disputes are that the defendant/petitioner filed title eviction suit no. 56/79 against the plaintiff of Title Suit No. 273/93 for his eviction from the suit premises on the ground of non-payment of rent. The suit was eventually decreed on the basis of compromise. In terms of the compromise decree the plaintiff opposite party agreed to hand-over possession of the premises to the defendant/petitioner by December, 1993 and till then he agreed to pay rent at the rate of Rs. 200/- per month. It is stated that till June, 1993 the plaintiff/opposite party paid rent and thereafter stopped payment. The plaintiff-opposite party then filed title suit no. 273/93 for a decree of Specific Performance of Contract. It is alleged that the defendant/petitioner entered into an agreement on 29.7.93 whereby he agreed to sell the suit property to the plaintiff for a sum of Rs. 50,000/- and out of that a sum of Rs. 15,000/- was paid as an advance. It is further alleged that the defendant executed a Mahadnama and put the plaintiff in possession of the suit property. Plaintiffs further case was that he tendered the balance consideration money to the petitioner but he later on refused to take money and consequently the aforesaid suit was filed.
5. On the other hand, the defendant petitioner denied and disputed all the allegations made in the plaint and stated that when the plaintiff/opposite party failed to vacate the premises within the period fixed in the compromise petition, filed execution case for getting vacant possession of the suit property. It further appears that title suit no. 273/93 has been filed by the plaintiff/opposite party. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed for grant of interim injunction restraining the defendant/petitioner to take any step in execution case no. 3/94 pending in the court of 2nd. Munsif, Chapra and also to dispossess him from the suit premises till the disposal of the suit. Although the defendant/petitioner had denied and disputed the existence of any agreement of Mahadnama but the learned trial court after going through the affidavits came to a finding that there exists an agreement to sell and therefore, the plaintiff/opposite party has prima-facie case. The court further held that the balance of convenience is in favour of the plaintiff and he will suffer irreparable loss in the event injunction is not granted. Accordingly the trial court allowed the application and granted temporary injunction to the plaintiff/opposite party. The appellate court in appeal by the defendant/petitioner affirmed the order of the trial court on the basis of the recitals made in the Mahadnama. The appellate court further held that since the plaintiff/opposite party pleaded about his readiness and willingness to perform his part of agreement and therefore, he has made out a prima facie case.
6. I have heard learned counsel for the parties and have gone through the orders passed by both the courts below. In my opinion, both the courts below have committed serious illegality and material irregularity in granting temporary injunction in the facts and circumstances of the case. The courts below have over-looked the settled principles of law that an agreement to sell creates right in personam and it does not create any right in property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. In the case of Jiwan Dass v. Narain Dass (AIR 1981 Delhi, 291) it has been held by a Division Bench that an agreement to sell creates a right in personam and not in the estate such right created against a vendor to obtain specific performance can ultimately bind any subsequent transferee till, therefore, a decree of specific performance is obtained, the vendor or a purchaser from him is not entitled to full enjoyment of the property even if a decree for specific performance of contract is obtained, and no sale deed is actually executed, it cannot be that any interest in the property is passed. Consequently, temporary injunction cannot be granted till sale deed is executed on the basis of decree of specific performance of contract to prevent the transferee under the sale deed from enjoying possession.
7. The second important settled proposition of law has also been totally over-looked by both the courts below. Admittedly the defendant/petitioner obtained a decree for eviction and executed the decree by filing execution case. It is well settled that execution of decree is not an injury within the meaning of Order 39 Rules 1 and 2 of the Code of Civil Procedure and therefore if in an execution of a decree a person is evicted then it cannot be said that he has suffered irreparable injury.
8. Regard being had to the settled proposition of law discussed hereinabove, the orders passed by the courts below cannot be sustained in law and it can safely be held that the courts below have exercised their jurisdiction illegally and with material irregularity. The decision in the case of Hindustan Aeronautics v. Ajit Prasad (AIR 1973 S.C 70) will not help the plaintiff/opposite party in supporting the impugned order passed by the court below. Another decision of the case of Venkat Dharmaji v. Vishwanath (AIR 1983 Bombay 413) will not apply in this case for the reasons that in that case the existence of sale was not in dispute rather it was the admitted document. In the result, this civil revision application is allowed and the impugned orders are set aside.