BALIA, J. - (1.) THIS revision petition is directed against the order dated 6th April 1991 passed by Additional District Judge, Nagaur, rejecting the injunction application, moved by petitioners by reversing the order passed by Civil Judge and Chief Judicial Magistrate, Nagaur on 3. 8. 1984.
(2.) RESPONDENTS Laxminarayan and Satyanarain had filed a suit for rent eviction against Deva Ram son of Shri Sitaram and Bhanwarlal son of Shri Deva Ram. The suit was decreed by the trial Court on 27. 2. 76 which was affirmed in appeal on 31st July 1982. The decree for possession was put for execution by the decree-holders against judgment debtors Deva Ram & Bhanwar Lal. During the pendency of execution application after the warrant of poss-ession was issued, Gheesa Ram filed, a suit for declaration of his title against the decree holders as well as judgment debtors and for permanent injunction of restraining the decree holders from dispossessing the plaintiff in execution of the decree. An application for temporary injunction under order 39 rules 1 & 2 CPC was also filed the trial court by its order dated 3. 8. 84 granted a temporary injunction restraining the decree holders from executing the decree in their favour for possession of the suit premises. On appeal the learned Additional District Judge found by discussing the material on record that there is no prima facie case in favour of the plaintiff and prima facie it appears that plaintiff was put in possession by the judgment debtors for abstracting the execution of decree. For arriving at its conclusion the appellate court relied on the report of Assistant Nazir dt, 7. 8. 83 according to which on that date the premises in question were unoccupied and were in a dilapidated condition, and on that date judgement debts have refused to deliver to possession. However, when after the report warrant of possession was issued on 11. 8. 83 with direction to secure the possession of premises in p73 question through police-aid. The present suit has been filed by Gheesa Ram, who is near relation of the judgement debtors and according to the material available on record in the form of Ration Cards' is person living jointly with the judgement debtors. A part from this material the lower appellate court has also taken into consideration the affidavits filed by both the parties. Learned counsel for the petitioner has urged that the lower appellate court had not discussed the reasoning given by the trial court; while granting the injunction, and was not entitled to reverse the order of the trial court merely because it cames to a different conclusion on the same material. He also contends that if the decree holders would have aged a complaint under Or. 21 rule 97, the plaintiff could to have been evicted without determination of his objections and therefore his position cannot be worst, because he has chosen to file a suit of declaration of title. Having carefully considered the arguments raised before me, I am of the opinion that the revision has no merit. It may be noticed while the lower appellate court has referred to report of the Assistant Nazir dt. 7. 8. 83 about the state of occupancy of the premises on 7. 8. 83 and refusal of judgment debtors to peacefully and voluntarily deliver the possession the trial court has relied on the report of the Assistant Nazir on warrant of possession issued on 11. 8. 83. The trial court ignored the fact that the warrant of possession was issued only after the judgement debtor has refused to deliver the possession of the suit property which was found to be vacant on 7. 8. 83 and not in occupation of anyone from this material document the conclusion is irresistible that prima facie the. plain tiff has been put in possession or come in possession after 7. 8. 83 and after the judgement debtor has refused to deliver the possession of the house which was lying vacant on 7. 8. 83 in execution of decree in question. This clearly establishes that lower appellate court has not reversed the finding on mere having a different view of the evidence considered by the trial court.
(3.) APART from the aforesaid fact one more fact which is apparent from the record and which has not been noticed by the court below is that plaintiff Gheesa Ram died during the pendency of suit. An application under Or. 22 rule 3 was moved by his daughters Mst. Panki in which she clearly stated that prior to his death said Gheesa Ram had bequeathed the property in question in favour of Mool Chand son of Deva Raw, one of the judgement debtor and therefore he be impleaded as a legal representative of Gheesa Ram. Thus, apparently property in respect of which execution was levied against Deva Ram and Bhanwarlal and in respect of which Gheesa Ram claimed himself to be the owner has in the circuitous way has reached the son of Deva Ram, the judgement debtor. In these circumstances if the lower appellate court has come to the conclusion that there is no prima facie case in favour of the plaintiff which may warrant issuance of a temporary injunction in their favour resulting in staying the execution of a decree passed by a competent Court and that prima facie the plaintiff appears to be acting at the behest of the judgment debtor, it cannot be said that the lower appellate court has committed any illegality or irregularity in the exercise of its jurisdiction in reversing the order passed by the trial court. In this connection it will also be relevant to refer to a recent decision of their Lordships of the Supreme Court in Munna vs. State of U. P. (1), where in the Lordships has observed that in a suit seeking to set aside the decree, the subject matter, in the earlier suit, which has become final, though the court has jurisdiction to grant ad-interim injunction in appropriate cases where a party seeks to set-aside the decree on the ground of fraud but the court would be circumspect before granting the injunction and look to the conduct of the party and the probable injury to either party and whether the plaintiff could be adequately compensated, if injunction is refused. The court also observed as under: - "if ultimately the respondent succeeds at the trial, they can be adequately compensated by awarding damages for use and occupation from the date of dispossession till date of restitution. " Thus, apart from the fact that no prima facie case exist in favour of appellant if the injunction is refused, no irreparable injury shall be caused to the plaintiff. The circumstances referred to above coupled with the observation of the trial court, that no case of fraud or mala fide in respect of obtaining the decree against judgement debtors has been made out. Clearly demonstrates that the conduct of the plaintiff does not appear to be bona fide. ;