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Present: Garvin and Drieberg JJ.
JINADASA v. WEERASINGHE.
20—D. C. (Inty.) Malar a, 3,418.
Injunction—Interim order—Application to discharge injunction—Interlocutory order—Civil Procedure Code, as. 377 and 666.
Where an application is made'to discharge an interim injunction. issued at the instance of the plaintiff, the defendant should followthe procedure indicated in sections 377 and 666 of the CivilProcedure Code.
PPEAL from an order of the District Judge of Matara,discharging an interim injunction granted by him.
Hayley, K.C. (with A. P. Jayaswriya), for plaintiff, appellant.
Keuneman, for defendant, respondent.
April 30, 1928. Garvin J.—
This is an appeal from an order of the learned District Judgewhich amounts to the discharge' of an interim injunction grantedby him in a case where the injunction was asked for in the plaintfiled in the action. When the injunction was served the defendantfiled a petition and affidavit and moved that the injunction be
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discharged. Thus far he acted in accordance with the provisions ofsection 666, but instead of moving for an order nisi or an inter-locutory order on those who represented the plaintiff, induced theCourt to procure the attendance of the Proctor for the plaintiff inCourt with a view to the immediate determination of the matter indispute. The proctor protested against the procedure and pointedout that the provisions of seotion 666 and section 377 of the CivilProcedure Code should be complied with by the defendant. Despitethis protest and subject to it, an argument took place, at the termi-nation of which the learned District Judge made order suspendingthe injunction and appointing a date thereafter for inquiry into thematter. It seems to me that the submission made by the Proctorin the proceeding held in the District Court is perfectly right. Theprocedure to be followed by a person against whom an injunctionhas been issed and who desires to obtain the discharge of thatinjunction is clearly laid down in the sections referred to. Sincethis procedure has not been followed in this case, the appellant isentitled to the relief which he claims, and we accordingly direct thatthe order under appeal in. so far as it relates both to the suspensionof this injunction and the date fixed for inquiry be set aside. Theplaintiff is entitled to retain the benefit of the interim injunctionordered in this case. Should the defendant desire to have thisinjunction discharged, he must follow the procedure indicated.
The appellant will have the costs of the appeal.
Dbxbbebg J.—I agree.
JINADASA v. WEERASINGHE