TAZMUL ALI Vs. MD. ULAIRAJA

JUDGEMENT

(1.) THE petitioners brought a suit for a declaration that the final decree passed in Title Suit No. 12 of 1968 in the Court of the District Judge, Cachar is void and inoperative. They alleged that the appointment of the Amin Commissioner and apportionment of shares were all done behind their back, that the final decree for partition has not been engrossed on proper stamp paper and therefore not existent in the eye of law and inoperative. The suit was numbered as Title Suit No. 35 of 1970 in the Court of the Assistant District Judge, Cachar, Silchar. The petitioners prayed for an ad interim injunction against the defendants restraining them from executing the said decree. The defendants filed their objections. The learned Assistant District Judge heard both the parties and came to the conclusion that there was no valid and proper final decree in Title Suit No. 12 of 1968 as it was not drawn up on the requisite stamp paper. He held that the petitioners have established a prima facie case and are entitled to an injunction and that irreparable injury would be caused to them if the decree is allowed to be executed. He also held that great inconvenience would be caused to the petitioners if injunction is not granted. He, therefore, ordered that the ad interim injunction issued earlier in favour of the petitioners should continue. The respondent preferred an appeal against the said order. The Lower Appellate Court relied on the decision of this Court in ILR (1952) 4 Assam 160 : (AIR 1953 Assam 104) (Abdul Hamid Khan v. Tridip Kumar) wherein it has been held that the execution of a decree does not amount to an injury and that an injunction cannot be issued restraining the decree-holder from executing the decree, even though hardship may be caused to the judgment- debtor. In view of this decision injunction was vacated. Against this order a Misc. Appeal was filed by the present petitioners. When the appeal came up for hearing before a learned Single Judge he was of the opinion that the appeal should be heard by larger Bench in view of conflicting decisions of this Court itself on the question as to whether the execution of a decree obtained in a previous suit can be stayed by an injunction in a subsequent suit where the decree of the previous suit was challenged on the ground of fraud. The appeal thereafter came up before a Division Bench. It was conceded before the Division Bench that the Misc. Second Appeal is not competent against the Appellate Order, but it was submitted by the present petitioners that an alternative revision application had been filed. The Division Bench, therefore, ordered that the matter may be heard as a Revision Petition. When the Revision petition again came up before the Division Bench it noticed that there were several Single Bench decisions to the same effect as AIR 1953 Assam 104 (Abdul Hamid Khan v. Tridip Kumar) but that there was an unreported decision of a Division Bench of this Court in Misc. Appeal (F) No. 23 of 1956 (Ganeshilal Khaitan v. Kshitish Chandra Kar) rendered on 19-5-1958 wherein this Court held that Order 39, Rule 2 was attracted when a temporary injunction was sought for against the execution of a decree in a suit challenging the validity of the decree on the ground of fraud. It was also held that in any event a temporary injunction could be granted under Section 151 C P. C. The Division Bench, therefore, was of the opinion that this is an important question of law which should be decided by a Special Bench. That is how it has come up before this Bench.

(2.) IN ILR (1952) 4 Assam 160: (AIR 1953 Assam 104) (Abdul Hamid Khan v. Tridip Kumar) two minors instituted a suit for a permanent injunction restraining the defendants from executing the decree alleging that there was no service on them, their guardian was not properly appointed, their interests were not looked after and that the decree had been obtained against them by the defendants by fraud. Following the decisions in AIR 1926 Mad 258; AIR 1927 Mad 687; AIR 1949 Mad 104 and AIR 1922 Bom 385 (2) the learned single Judge held that a rightful execution of a decree cannot be prevented by a temporary injunction since executing a decree is an act in the exercise of a legal right and could not amount to an injury caused to the plaintiff under Rule 2 of Order 39 of the Civil Procedure Code.

(3.) IN AIR 1969 SC 938 (Firm Ishardass Devi Chand v. R. B. Parkash Chand) an eviction order of the Rent Controller had been obtained by the defendant against the plaintiff. The plaintiff brought a suit for permanent injunction restraining the defendant from taking possession of the premises in execution of the eviction order. The plaintiff filed an application under Order 39, Rules 1 and 2 and Section 151 of the C. P. C. for grant of temporary injunction. The Trial Court dismissed the application holding that no prima facie case had been made out and that liability to be evicted in execution of a valid order could not be said to be "injury" within the meaning of Order 39 Rule 2. The question to be decided was whether the said order was appealable. The Lower Appellate Court had held that the order of the Trial Court was passed under Section 151 C. P. C. and not under Order 39, Rules 1 and 2 and that therefore, no appeal lay. The order of the Lower Appellate Court and order of the High Court affirming that view were held to be erroneous by the Supreme Court. The order of the Trial Court was held to be one under Order 39, Rule 2 itself since it decided that what the plaintiff was complaining of was not an injury within Order 39, Rule 2. On merits the Supreme Court held that the plaintiff had not made out a prima facie case and that the Trial Court had come to the conclusion that the balance of convenience was more in favour of the defendant than in favour of the plaintiff. Since in their opinion the Trial Court had not exercised its discretion capriciously or arbitrarily it was held that it was not a case for interference in appeal. But the question whether the liability to be evicted in execution of a valid order could be said to be an injury within the meaning of Order 39, Rule 2 was not decided by the Supreme Court. Incidentally, it may be noticed that the decision laid down that the scope of interference in appeal with the discretion exercised by the Trial Court for granting or for refusing a temporary injunction under Order 39 is limited to cases where the Trial Court has exercised its discretion capriciously or arbitrarily.