JUDGMENT A.N. Varma, J.
1. One Humayum Mirza, predecessor of the petitioner, who was plaintiff before the trial court instituted a suit, being Regular Suit No. 205 of 1982, against the opposite parties for grant of an injunction.
2. At the initial stage no injunction was granted and the application under Order XXXIX, Rules 1 and 2, C.P.C. preferred by the plaintiff was rejected by the trial court, against which an appeal was filed under Order XLIII, Rule (1)(r), C.P.C. The appellate court on 18.12.1982, allowed the appeal and directed the maintenance of status quo by the parties. It was further provided that the opposite parties shall not raise any constructions so as to dispossess the petitioner from over the property in question. The suit was, however, dismissed for non-prosecution on 4.5.1994. An application for restoration was preferred on 20.5.1994 which was allowed on 26.4.1995 and the suit was restored to its original number.
3. Sometime in November, 1996, the opposite parties started raising construction over the property in question whereupon the petitioner on 13.12.1996 made an application under Order XXXIX, Rule 2A, C.P.C. before the District Judge for the alleged violation of the injunction order. Opposite party No. 1 vide judgment and order dated 26.8.2004, rejected the said application on the ground that the suit of the petitioner already stood dismissed for non-prosecution on 4.5.1994 and upon its restoration the order of injunction did not automatically stood revived, therefore, no violation of the said order of injunction could be said to have been made as on the date when the construction started there was no injunction order.
4. I have heard the learned counsel for the petitioner Shri Anurag Narain as well as the learned standing counsel who appears for opposite party Nos. 1 and 3 and Shri Anuj Kumar Srivastava who has put in appearance on behalf of opposite party No. 2. With the consent of the parties the writ petition is being disposed of finally at the stage of admission.
5. Shri Anurag Narain learned counsel for the petitioner submitted that the impugned order passed by opposite party No. 1 contained in Annexure-1 dismissing the petitioner's application under Order XXXIX, Rule 2A, C.P.C. suffers from manifest errors of law inasmuch as opposite party No. 1 fell in grave error in recording a finding that upon restoration of the suit the order of injunction did not stand revived unless there was a specific order to the same effect. In this connection he placed reliance upon a decision rendered by the Apex Court in Vareed Jacob v. Sosamma Geevarghese and Ors., 2004 AIR SCW 4269. The question before the Apex Court was as to whether upon restoration of the suit which had been dismissed for default, the injunction granted earlier would stand revived. The majority view was that upon restoration of the suit the order of temporary injunction would automatically stand revived unless the Court expressly or impliedly excludes its operation. The Hon'ble Supreme Court in paras 20, 21 and 22 of the said judgment observed as follows :
"20. In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy (supra), it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated when the Court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived alongwith the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of the interlocutory orders passed during the period between dismissal of the suit and the restoration.
21. In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury, 1987 (4) SCC 78, it has been held that in view of Order XXI, Rule 57, C.P.C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before the dismissal of the title execution suit. We repeat that this judgment was under Order XXI, Rule 57, whose scheme is similar to Order XXXVIII, Rule 11 and Rule 11A, C.P.C. and, therefore, we cannot put all interlocutory orders on the same basis.
22. For all the aforesaid reasons, the decree holder in this case was entitled to exclude the period of 5 years 8 months and 26 days between 25th June, 1969 and 21st March, 1975, in computing the period of limitation for execution of the decree.
6. In view of the aforesaid proposition laid down by the Apex Court, upon restoration of the suit on 26.4.1995 the order of injunction also stood revived. The learned court below, thus, fell in error in holding that there was no injunction order when the suit was restored as according to him upon restoration of the suit the injunction order would not automatically stand revived
7. In view of the aforesaid the writ petition succeeds and is allowed. The judgment and order dated 26.8.2004, as contained in Annexure-1 is quashed. Opposite party No. 1 is directed to decide the matter afresh in accordance with law taking into account the observations made hereinabove.