VAREED JACOB versus SOSAMMA GEEVARGHESE AND ORS.

Citation: [2004] SUPP. 1 S.C.R. 534 · Decided: 21-04-2004 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Dismissed

Judgment (excerpt)

A 
B 
V ARE.ED JACOB 
v. 
SOSAMMA GEEV ARGHESE AND ORS. 
APRIL 21, 2004 
[V.N. KHARE, CJ., S.B. SINHA AND S.H. KAPADIA, JJ.] 
Code of Civil Procedure, 1908; Orders 21, 38, 39 and 40; Sections 94 
and 151: Suit/or partition-Decreed by MunsiffCourt in favour of one of the 
C defendants granting recovery of certain items-Challenged by another 
defendant by filing a suit against decree holder-Issuance of temporary 
injunction by the Court-Suit dismissed for default-Restoration of suit-
Suit finally dismissed on merit-Appeal dismissed by the first Appellate Court 
and Second appeal dismissed by High Court-Execution Petition-Expiry of 
limitation period-Executing Court held since the decree holder was precluded 
D from executing the decree in time by filing a suit, time elapsed in the 
proceeding of the Court could be excluded wiiile computing limitation period 
for the purpose of execution of the decree-Affirmed by the High Court. 
Held Per majority: 
E 
Depending upon the circumstances of the case, different set of-rules 
have been applied to grant interim relief-The rules of temporary injunction 
under Order 39 cannot be equated with the rules of attachment before 
judgment under Order 38-F acts and circumstances of the case fall under 
Order 39 and not under Order 38-Hence, the decree holder was entitled to 
F exclude the time elapsed in disposing of the suit for computing the period 
of limitation for the purpose of execution of the decree. 
Held, Per minority: 
An Order of temporary injunction could be merged with a decree of 
G permanent injunction and it would be effective even when a decree is passed-
However, it does not entail its revival upon restoration of a suit which was 
dismissed for default-Supplemental proceeding could be taken recourse to 
only when the interest of justice is required to be sub-served-A construction · 
which preserves the rights of the parties pending adjudication must be 
allowed to operate vis-a-vis privilege conferred upon a plaintiff to obiain an 
If 
534 
V AREED JACOB v. SOSAMMA GEEV ARGHESE 
535 
interlocutory order which loses its force on dismissal of the suit-It would A 
not revive unless expressly directed by the Court on restoration of the suit. 
Limitation Act: 
Jurisdiction of the Court-A suit/proceeding, if barred by limitation, 
culminates into a right to the non-suitor which could be curtailed only by B 
express terms of a statute-It ousts the jurisdiction of the Court to entertain 
the same. 
Incidental proceedings vis-a-vis supplemental proceedings-Distinction 
between in the context of revival of interlocutory order on restoration of the 
suit-Discussed 
C 
In a suit for partition the MunsifT Court has granted recovery of certain 
items in the final decree in favour of one of the defendants. Another defendant 
filed a suit against the decree holder. The Court passed an order of temporary 
injunction restraining the decree holder from executing the decree. Later, D 
the suit was dismissed by the Court for default. The suit was restored to file; 
it was ultimately dismissed on merits. First Appellate Court and thereafter 
High Court dismissed the appeals filed before them. The decree holder filed 
the Execution Petition. The Judgment debtor objected on the ground that it 
was barred by limitation as it was not filed within 12 years from the date of 
the decree. The Executing Court held that the Execution Petition was filed E 
within time since the decree holder was precluded from executing the decree 
for the period from 25th June, 1969 to 21st March, 1975, when the suit filed 
by the judgment debtor came to be finally dismissed on merits. The judgment 
was affirmed by the High Court. Hence the present appeal. 
It was contended by the appellant that during pendency of the suit filed F 
by him against the decree-holder, there was an order of temporary injunction 
restricting execution of the decree but with the dismissal of the suit for default, 
the order of temporary injunction came to an end and it did not revive even on 
restoration of the suit and consequently nothing prevented the decree holder 
from executing the decree. 
G 
Respondents (decree-holder) submitted that an ancillary order passed 
in a suit which was dismissed for default stood automatically revived on its 
restoration and so he was entitled to exclude the period during which the suit 
filed against execution of the decree was finally disposed of, for the purpose 
of computation of limitation period 

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