1 SA 276.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 276 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. M.M.Patil (Beedkar),Advocate for the appellant. Mr.S.S.Thombre, Advocate for resp. nos. 1 to 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 06/04/2011 PER COURT : 1. Initially, the Suit was filed bearing R.C.S. No. 129 of 1995, wherein the parties have arrived at compromise as per the terms of compromise entered into between the parties. The decree was drawn in terms of the compromise vide Order dated 1/1/1996. Thereafter the present appellant filed Darkhast proceedings bearing R.D. No. 5 of 2007 and sought injunction restraining the present respondents from interfering in their possession purportedly invoking the provisions of Order XXI Rule 97 of the Code of Civil Procedure. The executing Court allowed the application of the present appellant and clamped injunction against 2 SA 276.2010 the present respondents. The present respondents preferred Appeal before the District Court challenging the said order. The Adhoc District Judge – 1, Parbhani allowed the Appeal and set aside the order passed by the executing Court. Aggrieved thereby, the present Appeal has been filed. 2. Mr. M.M.Patil (Beedkar), the learned counsel for the appellant contends that the observations of the District Court in para no. 6 of its Judgment are perverse and against the record. The deed of settlement itself very specifically shows that the parties were put in possession of their respective shares allotted to them pursuant to the said compromise, whereas the District Court in para no. 6 of its Order has observed otherwise. Even the executing Court has taken into consideration this aspect and had granted injunction. 3. Per contra Mr. S.S. Thombre, the learned counsel for respondent nos. 1 to 3 submits that the lower appellate Court has rightly passed the order considering the position. No error can be found in the order passed by the District Court. The anomalies in the compromise deed have been properly considered by the District Court. 3 SA 276.2010 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. At the first instance, the said application purportedly under Order XXI Rule 97 of the Code of Civil Procedure was not maintainable in as much as the present Appellant has sought the relief of injunction. The same was out side the realm of Order XXI Rule 97 of the Code of Civil Procedure. The compromise between the parties is a contract super imposed with the seal of the Court. If at all the appellant is aggrieved by the act of the respondents, then in such circumstances, the application for injunction in the executing proceedings was not the remedy. The executing Court could not have invoked its jurisdiction under Order XXI Rule 97 of the Code of Civil Procedure for the said purpose, so also, the District Court would not get jurisdiction to entertain the Appeal. If the order was passed under Order XXI Rule 97 of the Code of Civil Procedure, then the party aggrieved could have filed Regular Civil Appeal as the said order would tantamount to decree. In the present case, Misc. Civil Appeal was filed purportedly under Order XLIII of the Code of Civil Procedure. The District Court could not have entertained the Misc. Civil Appeal nor could have made any such observation. 4 SA 276.2010 6. However, such application for injunction itself was not maintainable before the executing Court. The executing Court could not have clamped injunction. As such, even though the Misc. Civil Appeal would not be tenable, still the application before the executing Court itself would not be tenable and the appellant would not get any right to claim injunction. 7. In the result, the Second Appeal is disposed of with the aforesaid observations. The impugned orders passed by the executing Court and the District Court are quashed and set aside. The cause of action for injunction is a cause of action ‘ de die in dem ’. If the appellant so desires, then he is at liberty to initiate proper proceedings. 8. The Second Appeal is accordingly disposed of, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 276.2010