DILIP KUMAR SETH, J. - (1.) This appeal is directed against an order No. 36 dated 13th December, 1995 passed in Title Suit No. 1105 of 1992 by the learned Judge. IXth Bench, City Civil Court, Calcutta. By the said order, injunction was granted against the defendant/appellant restraining her from proceeding with the Execution Case No. 60 of 1991 arising out of Title Suit No. 567 of 1989.
(2.) The plaint case, inter alia, was that the appellant/defendant had instituted a suit for eviction of licensee against the husband of the plaintiff respondent herein and obtained an ex parte decree in the said suit. In the circumstances, the plaintiff/respondent had filed a Title Suit, being No.1105 of 1992, for declaration that the said decree was obtained by found and not binding upon her. In connection with the said suit, the plaintiff respondent had filed an application for injunction restraining the appellant/defendant from proceeding with the said Execution Case No. 60 of 1991 seeking to execute the ex parte decree obtained by the defendant/ appellant in Title Suit No. 567 of 1989. Injunction having been granted, the same is being challenged in this appeal.
(3.) Learned Counsel for the appellant points out that in view of Order 21 Rule 101 of the Code of Civil Procedure, the suit cannot be maintained since all questions between the parties are to be decided in a proceeding under Order 21 Rule 97 of the Code of Civil Procedure and not by way oi a separate suit. According to him, the respondent herein is a parry to the application under Order 21 Rule 97 of the Code of Civil Procedure. which is still pending before the learned Executing Court. Therefore, the suit being not maintainable, no injunction can be granted. He had also pointed out certain facts in order to show that there is no such allegation made out in terms of Order 6 Rule 4 of the Code of Civil Procedure specifying the details of fraud a'nd as such the suit cannot be treated to be a suit on the basis thereof. Further he contended that even the question of fraud can be gone into In a proceeding under Order 21 Rule 97 of the Code of Civil Procedure in view of Rule 101 thereof. He also contended that it is not only the judgment-debtor but also the person resisting execution of the decree is a party under such proceeding and in such a case Order 21 Rule 101 of the Code of Civil Procedure applies in full force. He also relied on the decision in Shreenath vs. Rajesh. AIR 1998 SC 1827. in support of his contention.;