Smt. Uma Devi and Others vs Narendra Kumar Roy and Others

Nagendra Rai, J.—Heard learned Counsel for the Petitioners.

This revision application is directed against the order dated 13.6.2002 passed by the appellate court in Misc. Appeal No. 77 of 2000 whereby he has set aside the order dated 5.9.2000 passed by the learned Subordinate Judge VI, Patna in Title Suit No. 212 of 1997 and granted interim injunction restraining the Defendants-Petitioners from executing final decree passed in Partition Suit No. 106 of 1988.

The Plaintiff-opposite party filed Title Suit No. 212 of 1997 for declaration that the registered deed of gift dated 5.5.1987 executed by Late Braj Nandan Prasad Singh in his favour is valid, genuine and binding on the Defendants and the Defendants have no right, title and interest in the same and the judgment and decree passed in partition Suit No. 106 of 1988/74 of 1993 by the Subordinate Judge XIII Patna is not binding on the Plaintiff. He filed an application for injunction under Order XXXIX, Rule 1 of the CPC before the Subordinate Judge and the Subordinate Judge having considered prima facie case, balance of convenience and irreparable injury came to the conclusion that no case for grant of injunction is made out. Thereafter, the Plaintiff filed appeal which was allowed.

Learned Counsel for the Petitioners submitted that once the matter has been decided by the civil court and decree has been passed, the appellate court should not have granted injunction. In other words, according to him, the appellate court has acted illegally in exercise of jurisdiction.

Learned Counsel appearing for the opposite party, on the other hand, submit-ted that the appellate court having been satisfied about the grounds for grant of injunction, has granted injunction and this Court in civil revision should not interfere with the said order.

Admitted fact is that decree has been passed in favour of the Defendants-Petitioners and in pursuance of which execution case has been levied by the Petitioners. Thus, the execution case is being prosecuted in pursuance of the decree passed by the competent court and In such a situation no case of injury being caused to the Petitioners is made out, specially when the Plaintiff-opposite can be put in possession after he succeeds in the suit u/s 144 of the Code of Civil Procedure.

A Division Bench of this Court in the case of Gaumont Kali Private Ltd. Co. Vs. Badri Prasad Jaiswal, held that the order of temporary in-junction cannot be made under Order XXXIX, Rule 2 of the CPC to restrain the decree holder from executing an ex-parte decree in his favour so long as the decree stands and merely because the Plaintiff institutes a suit for declaration that the decree obtained by the decree-holder is fraudulent without praying for setting aside the ex-parte decree it cannot be held that the execution W decree amounted to committing an injury. The present case is fully covered by |the law laid down in the aforesaid case.

In the result, this revision application is allowed and the impugned order is set aside.