UPENDRA CHANDRA BARMAN AND ORS. Vs. NABIN CHANDRA SUTRADHAR
HIGH COURT OF GAUHATI
Upendra Chandra Barman And Ors.
Nabin Chandra Sutradhar
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M.C. Pathak, J. -
(1.) BY this revision petition under Section 115, Code of Civil Procedure Code, the Petitioners have challenged the appellate order of learned District Judge, L. A. D., at Gauhati in an injunction matter.
(2.) THE Petitioners' case, inter alia, was that the Defendant obtained an ex parte decree on 15 -4 -50 for eviction from 55 and odd bighas of land and also for arrear of rent against 3 persons, namely, Dina Bandu, Gopi Mohan and Rajendra. The Petitioners were not parties in that decree. That they were occupancy tenants in respect of 33 bighas of land covered by that decree and that said ex parte decree was obtained fraudulently. On these allegations that Petitioners filed Title Suit 94/66 in the court of the Assistant District Judge, Gauhati, for declaration that the decree dated 15 -4 -50 in Title Suit No. 75 of 1949 of the Court of Subordinate Judge, L. A. D Gauhati was not binding on and executable against the Plaintiff -Petitioners. They also prayed for declaration that they were occupancy tenants in respect of the land described in the schedule to the plaint and for granting perpetual in -junction restraining the Defendant opposite party from executing the aforesaid decree against the Plaintiffs Petitioners.
The Petitioners made an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for temporary injunction. The learned Assistant District Judge granted ad interim injunction which was made absolute by his order dated, 23 -12 -67 after hearing both the parties. An appeal was taken from the said order before the learned District Judge, who by his order dated 21 -11 -68 set aside the order of the learned Assistant District Judge and refused injunction. The present revision petition is directed against this order of the District Judge.
Mr. B. Islam, the learned Counsel appearing for the Petitioners, submits that the learned District Judge was wrong in his finding to the effect that the present case did not attract the provisions of Order 39, Rule 2 of the Code of Civil Procedure Code, and by his wrong interpretation of law the learned District Judge failed to exercise his jurisdiction vested in him in refusing to grant the injunction. The question, therefore, for determination is whether the phrase "other injury of any kind" occurring in Order 39, Rule 2, Code of Civil Procedure Code, may include the execution of a lawful decree which has not been set aside by appellate court nor by any other competent court. In the case of Mt. Ladi Agarwallani v. Keolraj Sethi, AIR 1955 Gau 174, it has been held that person should not be prevented from executing; a decree obtained by him on the ground that it causes injury to the Plaintiff. The execution of a decree is in the exercise of a legal right and it cannot be placed on a par with the breach of a contract or injury to property or the disturbance of other rights vesting in a particular individual.
(3.) IN the case of Hemant Kumar V. Ayodhya Prasad, reported in, AIR 3957 Mad 95, it has been held that no order of injunction can be made under Order 39, Rule 1 or Rule 2 or under Section 151, Code of Civil Procedure to restrain decree -holder from executing a decree in his favour so long as it stands, and merely because the Plaintiff institutes a suit for a declaration that the decree is not binding on him and that he hopes to succeed in the suit, it cannot be held that the execution of the decree would amount to committing an injury.;
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