Ouseph George vs Varkey Varkey and Others

Subramania Iyer, J.—The applicant in a proceeding to obstruct delivery of property to the first Respondent from the second pursuant to a decree obtained in that behalf having failed as would appear from the decision of this Court reported in - Ouseph George v. Varke AIR 1953 Trav 123 (A) has now resorted to Anr. remedy, also anticipatory, by way of a suit, O.S. 297 of 1952. In that suit he applied for an injunction restraining execution of the decree obtained by the first Respondent against the second. That application was dismissed by the Court below by an elaborate order discussing the merits of the Plaintiff''s case. In view of the fact that the Petitioner-Plaintiff says he is in actual possession of the property on his own account, his remedy would be, as decided by this Court in the aforesaid case, to obstruct delivery if attempted by the officer of the Court. An application for injunction restraining execution of the decree does not appear to be the proper procedure to pursue if the execution of a decree properly passed can at all be restrained by an interlocutory order of injunction.

In this view the order passed by the Court below rejecting the application for injunction is upheld and the C.R.P. dismissed. I must however observe that the opinions, recorded by the Court below upon the various questions which arise for decision in and for the purpose of the original suit should not be taken to have been recorded and should not in any way embarrass the Court below in considering all questions afresh while passing a decree in the original suit. I make no order for costs in this C.R.P.