Whether the Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure, by the appellant aggrieved by an order of status quo till 11-6-2003 granted in I.A.No.447/2003 in O.S.No.142 of 2003 dated 30-5-2003 on the file of Vacation Civil Judge-cum-II Additional District Judge is maintainable with out following the regular procedure ? - Yes - Moving regular court too is not a bar for maintaining this appeal - 2015 A.P.(2003) MSKLAWREPORTS - http://mskpublications.blogspot.in/



Division Bench already held 
        "It is clear that under O.43, R.1(r), the right of appeal given to the
affected party is not only against a final order of injunction passed by the
lower Court after hearing both the parties under R.4 of O.39 but also against an
ex parte order of injunction passed by the lower court under O.39 R.1 without
hearing the affected party.     Normal judicial machinery for correction of ex
parte orders is the original Court itself.  But under O.43, R.1(r) the injuncted
party can go to an appellate Court against an ex parte order even without first
going before the original Court.  So long as the statute has so willed the
Courts should give effect to that expression of the legislative will,
particularly in the case of remedy by way of an appeal".

Conclusion 

 The order of status quo granted in the present case is an order passed by
the Vacation Civil Judge in exercise of his powers under Order 39 Rules 1 and 2
of the Code and even as against such an ex parte order, a Civil Miscellaneous
Appeal lies to this Court only.
 Hence, in view of the
legal position, I have no hesitation in holding that the Civil Miscellaneous
Appeal as against an order of status quo made under Order 39 Rules 1 and 2 of
the Code is perfectly maintainable.
NO Bar to move regular court
It is no doubt true that the appellant
could have as well moved the I Additional Junior Civil Judge, Kakinada for
vacating the order, but for the reasons explained in the affidavit filed in
support of the application before this Court and in view of the urgency, the
appellant thought of preferring the present Appeal.  - 2015 A.P.(2003) MSKLAWREPORTS - http://mskpublications.blogspot.in/

Popular posts from this blog

APEX COURT DIGEST - Jan.2017 [6]

Delhi Rent control Act sec.14 - Rent Control Case - Eviction Petition - The landlord sought the eviction of the tenant  on  the  ground  that  the tenant had sub-let the premises to his son-in-law  in  contravention  of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred  to  as ‘the Act’).  -  whether  he  was doing business along with his father-in-law or independent of him,  i.e. whether  he  was  doing  business  exclusively  behind  the  façade   of   a  partnership or as a genuine partner.  It is an  uncontroverted  fact  before  us that the landlord’s permission in writing was  not  obtained  before  the  tenant had allowed the alleged sub-tenant to occupy the shop -  the Rent Controller clearly found that the son-in-law had been put  in  possession of the shop in pursua...
Read more

Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose of this Section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports

"(i) Whether  Section 6  of the Hindu Succession Act, 1956, as amended by the Amendment Act , 2005 is prospective or retrospective in operation? (ii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born prior to 17.6.1956? (iii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"   In addressing an argument that the Explanation to  Section 6  clearly provides that partition means any partition made by execution of a deed duly registered under the  Registration Act , 1908...
Read more

Or.39, Rule 1 & 2 and Sec. 151 and sec.94 of C.P.C - Police aid when to be granted - hear both parties when resisted - to avoid dispossession of actual possessor with the help of police aid - identify the property before issuing of police aid with the help of advocate commissioner if necessary - since the defendant pleaded that before the filing of suit and after filing of the suit ,he never trespassed into the suit schedule property nor violated interim injunction order - even though no evidence of violation of injunction not filed , the lower court feels that no prejudice would be caused to the respondent when police aid is granted -2013 A.P. msklawreports

filed the I.A.No.175 of 2010 for granting police aid on the ground that the order of ad-interim injunction could not be implemented as the petitioners involved in violating it. In particular the petitioner has not filed any document to show that the injunction granted by this Court is being violated or the respondents damaged his quarry It is the case of the respondents that they did not trespass into suit schedule property before or after the injunction is granted.  What that is the case of the respondents, this Court feels that no prejudice would be caused to the respondents if the police aid is granted to implement the order of this Court. "  the Court below granted the police aid aggrieved by which the present C.R.P. has been filed However, whereas great caution is to be taken for granting ex parte ad-interim injunction equal measures are to be taken while granting police aid to enforce that order.   Under the guise of an order of ad-interim i...
Read more