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1977 DIGILAW 186 (MP)

Syed Rasoolan v. Santi Devi

1977-05-02

M.L.MALIK

body1977
Short Note : 1. The applicant has been restrained by an injunction from executing the ex-parte eviction decree which he had obtained in Civil Suit No. 277-A of 1974. He has, therefore, come up in revision. 2. To state the facts briefly, the applicant filed Civil Suit No. 277-A of 1974 against his tenant Sunder Das for eviction. He obtained an ex-parte decree. The applicant took out execution but in the meantime Sunder Das died on 4.9.1974. The non-applicants are his legal representatives in occupation of the house. The made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree but later withdrew the application and filed the instant suit for a declaration that the ex-parte decree was fraudulently obtained and, therefore, void. In that suit, they prayed that they should not be evicted till their suit was decided. An ad-interim injunction has been granted in their favour which was confirmed in appeal subject to the non-applicants giving security. The applicant is aggrieved by that order. 3. The learned counsel for the applicant argued that so long the ex-parte decree was not vacated and remained operative, the decree-holder could not be injuncted from executing the decree lawfully obtained and that the execution of such a decree was causing no injury within the meaning of Order 39, Rule 2 of the Code of Civil Procedure. The counsel relied on Hemant Kumar vs. Ayodhya Pradesh, AIR 1950 MB 95, Ganpati vs. Shivram, AIR 1963 MP 209 and Abdul Gani vs. Mahant Ram Saran, AIR 1967 J&K 72. The injunction order, the counsel said, was clearly beyond the scope of Order 39, Rules 1 and 2 and manifestly erroneous. 4. The Courts below preferred to follow a much later decision of this Court reported in Surendrasingh vs. Lal Sheoraj, 1975 JLJ 140 wherein it has been held that a decree which prima-facie appears to be illegal or void, if permitted to be executed, would no doubt cause injury and in suitable causes where challenge is made to a decree which has taints of illegality, execution of such a decree could be restrained by an ad-interim injunction. 5. The two Courts below have prima-facie viewed the applicant's decree with suspicion and, therefore, have maintained status quo till the suit is finally decided. There is no error of jurisdiction and interference is not called for. 5. The two Courts below have prima-facie viewed the applicant's decree with suspicion and, therefore, have maintained status quo till the suit is finally decided. There is no error of jurisdiction and interference is not called for. The Municipal Corporation of Delhi vs. Suresh Chandra Jaipuria, AIR 1976 SC 2621 . I need say nothing on merits of the case whether or not the suit is com-pent after an application under Order 9, Rule 13, CPC was preferred and allowed to be dismissed and whether challenge could be made to the release order passed by the Custodian of Evacuee Property. 6. The learned counsel for the applicant contented that the surety bond given in pursuance of the Court's order was not acceptable since the details of the property upon which the solvency was verified had not been given. The applicant made a grievance of that before the trial Court. The non-applicants are prepared to get the defect rectified if that Court so orders. Revision dismissed.