Patna High Court
Firm Kedar Nath Babu Lal vs Prabhu Narayan Sahu And Ors. on 29 March, 1957
Equivalent citations: AIR1958PAT130, AIR 1958 PATNA 130
JUDGMENT Dayal, J.
1. This is an appeal by the defendant under Order 43, Rule 1 (r) of the Code of Civil Procedure. The relevant facts are these-
The defendant obtained an ex parte decree for Rs. 5019/9/6 in Commercial Suit No. 345 of 1952 from the Original Side of the Calcutta High Court against the plaintiffs. The decree-holder proceeded with the execution of the decree and filed Execution Case No. 5 of 1953 in the court of the Subordinate Judge of Ranchi where the decree had been transferred for execution. In execution, the decree-holder attached the house of the plaintiffs and wanted satisfaction of the decree by the sale of the house. The plaintiffs having come to know of the execution case, filed an objection.
The objection was dismissed on 18th November, 1953. On 7th December, 1953, the plaintiffs filed Title Suit No. 64 of 1953 for a declaration that the decree passed in the above mentioned commercial suit was not binding on them as the same had been obtained fraudulently by suppression of summonses. A prayer for perpetual injunction was also made for restraining the defendant from proceeding with the execution case. On the same day, the plaintiffs also applied for a temporary injunction. The case made out in the plaint and the petition for injunction was that the plaintiffs had a prima facie case and that they would suffer a great loss in case their house is sold in execution of the fraudulent ex parte decree.
2. The allegation in the plaint is that the said Commercial Suit was absolutely false and it had been instituted because of enmity.
3. The material allegations in the plaint are:
"14. That the defendant wilfully and fraudulently suppressed the notice and summons, issued by the Hon'ble High Court in order to obtain a decree based on a false claim by preventing the plaintiffs from placing their case before the Hon'ble High Court at Calcutta".
"15. That due to the fraudulent suppression of summons and notices, issued by the Hon'ble High Court, the plaintiffs were in dark and, they did not and could not know about the institution of the said Commercial Suit and hence did not and could not appear and contest the suit."
"16. That the plaintiffs have suffered a great loss due to the passing of the said ex parte decree".
"17. That the plaintiffs asked the defendant several times not to proceed with the execution but they refused to do so and hence the suit."
''18. That the defendant has taken out execution and has got the house attached and is trying to get it sold by auction. With a view to maintain status quo and prevent multiplicity of suits, it is necessary that a perpetual injunction restraining the defendant from proceeding with the execution case pending in your honour's court be passed."
4. In the petition for temporary injunction the plaintiffs alleged as follows:
"1. That the plaintiffs have filed the above suit against the defendant for declaration that the decree obtained in Commercial Suit No. 345 of 1952 has been obtained by fraudulent suppression of summons and plaint and is not binding on the plaintiffs and for perpetual injunction restraining the defendants from proceeding with the execution".
"2. That the defendants are proceeding with the execution and are taking steps for issue of sale proclamation."
"3. That in order to prevent multiplicity of suits and maintain status quo it is necessary to issue temporary injunction -- restraining the defendant from proceeding with the suit."
"4. That the plaintiffs will suffer irreparable loss if temporary injunction is not granted."
An ad interim injunction was granted and notices were issued on the defendant.
5. The defendant resisted the application for injunction and on grounds amongst others alleged that the injunction petition had been filed simply to harass the defendant and thus to deprive him from reaping the fruits of a valid decree.
6. The court below by its order dated the 22nd June, 1954, made the order of ad interim injunction absolute and held as follows-
"I have to see as to whether the plaintiffs have a prima facie case according to the allegations made in the plaint. If so, are they entitled to the temporary injunction.
As the plaint stands they have got a prima facie case for the suit. Hence when they claim injunction as one of the reliefs in the same it is just and proper that they should be granted temporary injunction as prayed for maintaining the status quo."
Being thus aggrieved, the defendant has filed the present Miscellaneous Appeal.
7. Mr. B.C. De, appearing for the appellant, has contended that the plaintiffs have not made out any case of substantial injury which cannot be compensated by damages. He has further contended that the suit had not been properly valued and the court-fee paid was insufficient and, therefore, in view of Sections 42 and 56 of the Specific Relief Act, 1877, the suit was not maintainable. Mr. De has also relied on Brajendra v. Kashibai, ILK 24 Pat 656 : (AIR 1946 Pat 177) (A) and Dalip Narayan Singh v. Srimati Amarbas Kuer, ILR 16 Pat 738 : (AIR 1938 Pat 228) (B).
8. The plaintiffs have clearly made out a case of substantial injury in their plaint and in the petition for injunction they have submitted that in execution of a fraudulent ex parte decree their house is going to be sold. The decision in Brajendra v. Kashibai (A) (Supra) does not appear to have found much favour in later cases of this Court. See Province of Bihar v. Kamakshya Narain Singh, AIR 1950 Pat. 366 (C), Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad, AIR 1951 Pat. 469 (D), and Pratap Udai Nath Shah Deo v. Kumar Baralal Durga Prasad Nath Shah Deo, Misc. F. A. No, 362 of 1949, decided by a Division, Bench of this Court on 4th May, 1951 -- un-reported (E).
9. The case of ILR 16 Pat 738 : (AIR 1938 Pat 228) (B) is clearly distinguishable. Here a third person having lost a claim case instituted a title suit praying for injunction.
10. In Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad (D) (Supra) their lordships have held:
"What the court has to determine in granting injunction is whether there is a bona fide contest between the parties and when there is a fair and substantial question to be decided as to the rights of the parties in the suit it is not necessary for the purpose nor is it right that the court should further examine the question in dispute or anticipate the decision of the question in the suit itself."
From the relevant extracts of the plaint given above, a clear prima facie case has been made out and on the facts, a case of substantial injury is also there.
11. For these reasons I would confirm the order of the court below and dismiss this appeal with costs;-hearing fee Rs. 32/-.
12. I may observe that the suit, which is now clearly four years old, should be disposed of expeditiously and the records of the case be transmitted to the court below immediately. The appellant must thank himself in calling for the entire records in this case at the time of the admission of his appeal and in not taking steps for expeditious hearing of the suit.
Sinha, J.
13. I agree. In the present case, the plaintiffs have brought the suit for a declaration that a certain decree obtained on the original side of the Calcutta High Court was obtained fraudulently by suppressing summonses etc. The Court below has, under Order XXXIX, Rule 1 of the Code of Civil Procedure (Act V of 1908) granted temporary injunction restraining the defendant from proceeding with the execution of the decree obtained by him in the Calcutta High Court, upon its findings that the plaintiffs have a prima facie case and the balance of convenience also lay in maintaining the status quo. The defendant has come up in appeal against the order of temporary injunction.
14. The relevant portion of Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908, reads as follows: --
"Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being .....wrongfully sold in execution of a decree .....the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing. . . . .sale..... of the property as the Court thinks fit, until the disposal of the suit or until further orders".
According to the plaintiffs' case as made out in the plaint, the property, which in the present case is their residential house, is in danger of being wrongfully sold in execution of the decree, because they challenge the validity of the decree itself. It has to be remembered that in the earlier Code of 1859 (Act VIII of 1859), dealing with the power of the Court to grant temporary injunction, the relevant portion of Section 92 ran as follows :--
"In any suit in which it shall be shown to the satisfaction of the Court that any property which is in dispute in the suit is in danger of being wasted, damaged, or alienated by any party to the suit, it shall be lawful for the Court to issue an injunction to such party. . . . ."
This section did not contain the words "wrongfully sold in execution of a decree", which were added by the later Act, X of 1877, and Section 492 of Act XIV of 1882, adopting the language of the Code of 1877, in Chapter XXXV "of Temporary Injunctions and Interlocutory Orders" read as follows:--
''If in any suit it is proved by affidavit or otherwise-
(a) that any properly in dispute in a suit is in danger of being. .. . . wrongfully sold in xecution of a decree..... the Court may by order....."
This Section 492, therefore, is in almost the same terms as Order XXXIX, Rule 1 of the present Code of 1908. There is no doubt, therefore, that the power of the Court to grant a temporary injunction pending disposal of a certain suit was broadened by the Act of 1877 and the present Code. In the case of Brojendra Kumar Rai Chowdhuri v. Rup Lall Doss, ILR 12 Cal 515 (F), which was a case decided after the Code of Civil Procedure of 1882 had come in force, it was held that Section 492 of the Code of 1882 was intended to have a wider application than Section 92 of Act VIII of 1859.
In Amir Dulhin v. Administrator-General of Bengal, ILR 23 Cal 351 (G), the same view was taken. In a Full Bench of the Allahabad High Court in Abdullah Khan v. Banke Lal, ILR 33 All 79 (H), their Lordships held that the words "wrongfully sold in execution of a decree, were added by the Legislature to the Code of Civil Procedure of 1877 (Act of 1877) and by that addition it was clearly intended that an injunction might be granted when the property which the claimant claimed to be his was in the danger of being sold in execution of a decree against another person or even against himself.
Order XXXIX, Rule 1 of the present Code, therefore, authorises the Court to grant temporary injunction to restrain an execution sale when the property attached is in danger of being wrongfully sold. The principle underlying this rule is to prevent multiplicity of judicial proceedings. In our. Court also, the same view was taken. All that the Court, under Order XXXIX, Rule 1, Code of Civil Procedure, has to see is whether the claim made by the plaintiff in the suit is a bona fide one and whether there is a fair and substantial question to be decided as to the rights of the parties in suit, and further that it is in its discretion to grant or not an order of temporary injunction, though that discretion has got to be exercised according to the well settled judicial principles. AIR 1951 Pat .469 (D).
It was held in the case of AIR 1950 Pat 366 (C) that in granting temporary injunction under Order XXXIX, Rule I of the Code "we are not concerned to decide what is the correct answer to be given to the question in dispute in the hearing of the suit but merely whether there is a fair point for trial".
15. Mr. De, however, has relied upon the case of ILR 24 Pat 656 : (AIR 1946 Pat 177) (A). In that case, the important fact to notice is that the expression "any property in dispute in a suit is in danger of being. .. . .wrongfully sold in execution of a decree" did not come in for consideration. The question there at issue was whether the lands in dispute were within the boundaries of the respective leases of the parties on which they based their title. Apart from that, the decision given in that case to the effect that temporary injunction could only be granted where award of compensation and damages would not be full and complete remedy to the person applying for the same is not supported by any authority; but, as the case is distinguishable on facts, it is not necessary for us to. consider that decision in any greater detail.
It should, however, be noted that Mr. Justice Das (as he then was) and who was a party to the decision aforesaid had himself distinguished that case in Misc. First Appeal No. 362 of 1949, D/- 4-5-1951 (Pat) (E) on the ground that "it cannot be said that the operations have been very extensive or have gone on for such a number of years or with such an extensive outlay of capital on machinery etc. that it would be unjust and inconvenient to issue an order of injunction against the defendants. From this point of view, the case before us is easily distinguishable from the decision in ILR 24 Pat 656 : (AIR 1946 Pat 177) (A). . ..."
The other case to which reference was made by Mr. De is the case of ILR 16 Pat 738 : (AIR 1938 Pat 228) (B); but that case is also easily distinguishable inasmuch as in that case the plaintiff had brought the suit under Order XXI, Rule 63 of the Code of Civil Procedure after his claim under Order XXI, Rule 58, had been dismissed. In that case it was observed that the High Court would not interfere in the exercise of discretion by a Court under Order XXXIX, Rule 1 of the Code so long as that discretion was exercised judicially, and I respectfully agree with that observation. In the present case also, it cannot be said that the discretion under Order XXXIX, Rule 1, Code of Civil Procedure has not been exercised judicially.