1 73 ao.853.10 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 853 OF 2010 Joharsingh Sarvansingh Malhotra. ... Appellant Versus Gurumukh J. Sukhwani and others. ... Respondents ----- Mr. R.S.Apte, Senior Counsel, with Mr. M.S.Lagu for the Appellant. Mr. Jaydeep S. Deo for Respondent No.1. ----- CORAM : A.S.OKA, J. DATE : 11 th March, 2011. P.C. 1 Heard the learned counsel appearing for the Appellant. 2 The Appellant is the original plaintiff. The Appellant-plaintiff filed a money suit for recovery of a sum of Rs.97,46,000/- with interest at the rate of 9% per annum. In the said suit, an application for temporary injunction was made restraining the defendants from creating third party rights and from alienating the property described in the plaint. By the impugned order, the said application has been rejected. 2 73 ao.853.10 anr 3 The learned counsel appearing for the Appellant submitted that the Appellant has also applied for attachment before judgment of the same property in the suit and by a separate order, the said application for attachment before judgment has been rejected. He states that a separate proceeding has been filed by the Appellant for challenging the order passed below application for attachment before judgment. He states that in view of the order impugned, the application for attachment before judgment has been rejected. He, therefore, submitted that both the proceedings will have to be heard together. He submitted that the trial Court had power to grant temporary injunction. He submitted that for protecting the claim of the Appellant, order of temporary injunction ought to have been granted restraining the Respondents from selling their property. 4 I have given careful consideration to the submissions. Perusal of the plaint shows that it is a pure and simple suit for recovery of the money. If apprehension of the plaintiff is that the defendants in the suit are trying to alienate the property held by them with intent to obstruct 3 73 ao.853.10 anr or delay the execution of the decree which may be passed against them, the remedy of the plaintiff is to apply for attachment before judgment under Order XXXVIII of the Code of Civil Procedure, 1908. Hence, the application for seeking temporary injunction in respect of the immovable property allegedly held by the defendants was completely misconceived. The learned counsel appearing for the Appellant submitted that injunction can be granted both under Rules 1 and 2 of Order XXXIX of the Code of Civil Procedure, 1908. Under clause (a) of Rule 1 of Order XXXIX of the said Code, injunction can be granted only when any property in dispute in a suit is being in danger of being wasted, damaged or alienated. In the present suit, there is no substantive relief sought as regards the immovable property and therefore, the property in respect of which injunction is claimed, cannot be said to be a property in dispute. Clause (b) of Rule 1 will obviously not apply. Even clause (c) will not apply as the Appellant is not claiming to be in possession of the property. As far as Rule 2 of Order XXXIX is concerned, the same is applicable when the suit is filed for restraining the defendants from committing a breach of contract or other injury of any kind. In the present case, the suit is not the 4 73 ao.853.10 anr one, which is covered by sub-rue 1 of Rule 2 of Order XXXIX of the said Code. 5 The scope of the powers under Rules 1 and 2 of Order XXXIX and Rule 5 of the Order XXXVIII is completely different. The considerations for grant of prayers in the applications invoking the aforesaid provisions are different. 6 As the application for temporary injunction was itself misconceived, it is not necessary to entertain this appeal from order. Accordingly, the appeal from order is dismissed. It is made clear that this Court has made no adjudication on the prayer made by the Appellant- plaintiff for attachment before judgment and all questions in that behalf are kept open. 7 Civil Application No. 1060 of 2010 does not survive and the same is disposed of. [ A.S.OKA, J ]