Andhra HC (Pre-Telangana)
Fatima Fouzia vs Walashan Prince Moazzam Jah Bahadur on 7 December, 1979
Equivalent citations: AIR 1980 ANDHRA PRADESH 315, (1980) 1 ANDH LT 221
JUDGMENT Kuppuswamy, J.
1. The appellant is the defendant is O. S. 732/78 and respondent in I. A. No. 754/78 in this suit before the VI Additional Judge, City Civil Court, Hyderabad. I. A. 754/78 was filed for an injunction restraining the appellant herein from proceeding with E. P. No. 31/77 in O. S. 329/77 and from withdrawing any amount whatsoever in pursuance of the said proceeding pending disposal of the suit O. S. 732/78. The appellant filed the suit O. S. 329/77 on foot of a promissory note executed by the respondent herein for a sum of three lakhs on the file of the I Additional Judge, City Civil Court, Hyderabad. The suit was filed on 8-6-1977 and summonses were served on 7-7-1977. On 8-7-1977 to which date the suit was posted for first hearing, the defendant in that suit filed a written statement admitting the claim, but prayed permission for paying the amount in instalments. Accordingly the suit was decreed on 8-7-1977.
2. The present suit was filed by the respondent herein for a declaration that the decree in O. S. 329/'77 was obtained by fraud. The main contention was that vakalat was not given by him in favour of the advocate who purported to represent him and the written statement also was not filed by him. He was not aware of the decree until a long time afterwards when it was sought to be executed against him. The decree-holder filed E. P. 31/77 in execution of the decree obtained by him in O. S. No. 329/77. In those proceedings a sum of Rs. 1,80,000 was deposited by the Nizams Trust being the amount payable by the trust to the judgment-debtor for medical expenses. The respondent herein thereupon filed an application for an injunction restraining the appellant from proceeding with the execution of the decree and from drawing the amount deposited by the Nizams Trust.
3. The Court below held that the plaintiff, respondent herein had established a prima facie case for staying the proceedings in execution. Hence, it granted a temporary injunction restraining the appellant from proceeding with the execution. An interim injunction granted earlier was made absolute after hearing both the parties.
4. Challenging the said order, the appellant has preferred this appeal. The first contention that is urged by Sri Sahgal on behalf of the appellant is that under Section 41 (a) of the Specific Relief Act an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraining is necessary to prevent a multiplicity of proceedings, and under Section 41 (b) no injunction can be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought. In this case, it is admitted that the court in which the E. P. is pending is not subordinate to the court which had granted the injunction. This submission cannot be accepted as Section 41 has no application to a proceeding by way of interim injunction pending a suit. The circumstances under which such an injunction pending a suit can be granted are contained in O. 39. C. P. C. and we have therefore to look to that provision. The fact that Section 41 (b) of the Specific Relief Act has no application is clear from decision in Amir Dulhin v. Administrator General of Bengal, ((1896) ILR 23 Cal 351) where it was held that Section 56 of the Specific Relief Act would apply only to perpetual injunctions, temporary injunctions being left to be regulated by the Code of Civil Procedure and S. 56 of the Specific Relief Act was not intended to affect injunctions applied for under C. P. C.
5. It is next contended that even under the provisions of O. 39 C. P. C. an injunction cannot be granted to restrain a person from executing a decree which has been lawfully obtained. In support of this submission reliance is placed upon Appalanarasimha Raju v. Seethayamma Garu, (FB). But it has been held by the Supreme Court in Manohar Lal v. Seth Hirlal. that the court has got inherent power to grant injunction apart from the power conferred under O. 39 C. P. C. It is no doubt true that in the case before them, as pointed by Sri Sahgal, the Supreme Court was concerned only with an injunction restraining a person from proceeding with another suit and was not concerned with a case of an injunction restraining a person from executing a decree lawfully obtained. But the principle enunciated by the Supreme Court is of universal application, viz. That while the provisions to issue temporary injunctions are to be found in O. 39 Rr. 1 and 2, temporary injunction may be issued by a Court, in cases which are not covered by the said provision under its inherent power under Section 151 C. P. C
6. Apart from this there is the authority in support of the submission made by Sri Ramamohan Rao, learned counsel for the respondent that when a decree is being attacked as having been obtained by fraud, it is open to the court to grant a temporary injunction restraining the decree-holder from executing the decree pending disposal of the suit. In Surendra Singh v. Lal Sheoraj, it was held that in a suit to set aside the decree on the ground of fraud if the fraud is patent or there is a strong prima facie evidence of fraud a temporary injunction may be granted to restrain the execution of the decree during the pendency of the suit to set aside the decree. It was further observed that the court may grant an injunction in such cases subject to suitable terms to safeguard the interest of opposite party. In Tazmul Ali v. Md. Ulairaja, (AIR 1978 Gau. 56) (FB) it was held that the execution of a decree alleged to have been obtained by fraud is an 'injury' within the meaning of Rule 2, O. 39 and in an appropriate case injunction may issue. In C. M. A. No. 124 of 1979. D/- 23-7-1979: to which one of us (Choudary, J.) was a party it was held that where a decree is alleged to have been obtained by fraud it is open to the Court to issue a temporary injunction restraining the execution of the decree pending the suit challenging the said decree. The decision in Surendra Singh v. Lal Sheoraj (supra) was approved and it was held that the decision of the Full Bench in Appalanarasimha Raju v. Seethayamma, cannot be considered as an authority for the proposition that an injunction cannot be issued restraining a party from executing a decree alleged to have been obtained by fraud. The learned counsel for the appellant relied upon the decision in Gaumant Kali Pvt. Ltd. Co. v. Badri Prasad, where it was held that an order of temporary injunction cannot be made under O. 39, R. 2 C. P. C. to restrain the decree-holder from executing an ex parte decree in his favour so long as the decree stands merely because the plaintiff institutes a suit for declaration that the decree obtained by the decree-holder is fraudulent. We are however inclined to prefer the view ex pressed by this Court in C. M. A. No. 124 of 1979: and of the other High Courts in Surendra Singh v. Lal Sheoraj (supra) and Tazmul Ali v. Md. Ulairaja, AIR 1978 Gau 56 (FB) (supra).
7. Whatever may be the position in regard to O. 39, R. 2 C. P. C. it is now clear from the decision of the Supreme Court in Manohar Lal v. Seth Hiralal, (supra) that the court has inherent power under Section 151 C. P. C. to pass orders of temporary injunction in the interest of justice.
8. The decision of the Supreme Court in Mahohar Lal v. Seth Hiralal (supra) was followed in Amritlal v. Srinivasarao, where it was held that whatever might have been the position formerly, after the decision of the Supreme Court in Manohar Lal v. Seth Hiralal (supra) the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of O. 39 C. P. C. if the Court is of the opinion that the interests of justice require the issue of such interim injunction. If a decree is attacked as having been obtained by fraud and if the court feels that there is prima facie case made out, we cannot conceive of a clearer case where the interest of justice require that the execution of the decree should be stayed. We therefore reject the contention that the court below has no jurisdiction to issue an injunction restraining the appellant from executing a decree.
9. At the same time we are of the view that the circumstances of the case require that certain terms should be imposed. On the one hand if the injunction is granted without any conditions attached, if ultimately the plaintiff fails to establish that the decree was vitiated by fraud, it would result in the decree-holder being prevented form realising the fruits of the decree which he had obtained. On the other had, if ultimately the plaintiff succeeds in establishing that the decree was obtained by fraud and if in the meanwhile the entire sum of Rs. 1,80,000 together with interest is allowed to be drawn by the appellant the respondent would be put to difficulty in realising the amount.
10. Having regard to all the circumstances we consider that it is proper to make the following order:
11. The appellant will be permitted to draw a sum of Rs. 60,000 without furnishing security and the rest of the amount on furnishing bank guarantee or security to the satisfaction of the court below.
12. The appeal is allowed to the extent indicated above. There will be no order as to costs.
13. The court below will hear and dispose of the suit uninfluenced by any observations contained in this judgment.
14. Order accordingly.