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Firm Kedar Nath Babu Lal v. Prabhu Narayan Sahu And Others
Factual and Procedural Background
The defendant (decree-holder) had obtained an ex parte decree for Rs. 5019/9/6 in Commercial Suit No. 345 of 1952 on the Original Side of the Calcutta High Court against the plaintiffs. The decree was placed for execution in Execution Case No. 5 of 1953 before the Subordinate Judge of Ranchi after transfer for execution. In execution proceedings the decree-holder had the plaintiffs' house attached and sought satisfaction of the decree by sale of that house. The plaintiffs objected in the execution proceedings but their objection was dismissed on 18th November 1953.
On 7th December 1953 the plaintiffs instituted Title Suit No. 64 of 1953 seeking a declaration that the Calcutta ex parte decree was not binding on them because it was obtained fraudulently by suppression of summonses, and prayed for a perpetual injunction restraining the defendant from proceeding with execution. On the same day they sought temporary (interim) injunction to maintain status quo and prevent sale of their house, alleging a prima facie case and risk of great loss from sale under the allegedly fraudulent decree. An ad interim injunction was granted and notices were issued.
The defendant resisted the injunction application, alleging among other things that the injunction petition was aimed at harassing him and preventing him from enjoying a valid decree; he also contended that the suit was improperly valued and insufficient court-fee had been paid, invoking Sections 42 and 56 of the Specific Relief Act, 1877, and relied on certain Patna High Court decisions.
The court below, by order dated 22nd June 1954, made the ad interim injunction absolute, holding that the plaintiffs had a prima facie case and so were entitled to temporary injunction to maintain status quo. The defendant appealed to the High Court under O. 43, R. 1(r) of the CPC. The High Court heard the appeal and dismissed it, confirming the grant of the temporary injunction and ordering costs and a hearing fee.
Legal Issues Presented
- Whether a temporary injunction under Order XXXIX, Rule 1 of the Code of Civil Procedure should restrain execution (including sale in execution) where the plaintiff alleges that the decree being executed was obtained fraudulently by suppression of summonses.
- Whether the plaintiffs have shown substantial injury or irreparable loss (i.e., whether damages would be an adequate remedy) so as to justify granting a temporary injunction preventing sale in execution.
- Whether the suit was maintainable in view of the defendant's contention that the suit had not been properly valued and insufficient court-fee was paid (relying on Sections 42 and 56 of the Specific Relief Act, 1877).
- Whether the discretion exercised by the trial court in granting the temporary injunction under O. XXXIX, R. 1 CPC was judicially exercised and justified on the facts.
Arguments of the Parties
Plaintiffs' Arguments
- The decree in Commercial Suit No. 345 of 1952 was obtained by fraudulent suppression of summons and plaint; therefore it is not binding on them.
- The defendant has proceeded with execution, attached the plaintiffs' house and is seeking to sell it by auction; the house is therefore in danger of being wrongfully sold in execution of the decree.
- They have a prima facie case and would suffer irreparable loss if the house is sold in execution of the allegedly fraudulent ex parte decree; monetary compensation would not be an adequate remedy.
- A temporary/perpetual injunction is necessary to prevent multiplicity of proceedings and to maintain the status quo pending determination of the suit.
Defendant's (Appellant's) Arguments
- The injunction petition was filed merely to harass the defendant and to prevent him from enjoying the fruits of a valid decree.
- The plaintiffs had not made out any case of substantial injury that could not be compensated by damages.
- The suit had not been properly valued and the court-fee paid was insufficient; therefore the suit was not maintainable in view of Sections 42 and 56 of the Specific Relief Act, 1877.
- Relied on precedent authority (notably Brajendra v. Kashibai and Dalip Narayan Singh v. Srimati Amarbas Kuer) in support of his contentions regarding the scope of injunction relief.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Brajendra v. Kashibai, ILR 24 Pat 656 : AIR 1946 Pat 177 (A) | Relied on by appellant to argue limits on granting injunctions and the need for showing that damages would not be an adequate remedy. | The court observed this decision "does not appear to have found much favour in later cases" and treated it as distinguishable on facts; the court declined to follow it as a controlling authority on the present facts. |
| Dalip Narayan Singh v. Srimati Amarbas Kuer, ILR 16 Pat 738 : AIR 1938 Pat 228 (B) | Relied on by appellant; concerns circumstances in which injunctions will be refused (noted in text as a case where a third person instituted title suit). | The court held this case to be clearly distinguishable because there a third person (who had lost a claim case) had instituted a title suit; it was not treated as controlling here. |
| Province of Bihar v. Kamakshya Narain Singh, AIR 1950 Pat 366 (C) | Support for the proposition that in granting temporary injunction under O. XXXIX, R. 1 the court need only see whether there is a fair point for trial (need not decide the merits). | Referenced by the court as authority that Brajendra is not in line with later decisions and to support the test of whether there is a fair point for trial. |
| Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad, AIR 1951 Pat 469 (D) | Statement of principle: granting injunction requires determining whether there is a bona fide contest and a fair and substantial question to be decided; courts should not decide merits while deciding injunction. | The court relied on this passage directly to support the standard applied: that a prima facie bona fide contest and fair substantial question justify temporary injunction; used as guiding principle for upholding the injunction. |
| Pratap Udai Nath Shah Deo v. Kumar Baralal Durga Prasad Nath Shah Deo, Misc. F.A. No. 362 of 1949 (E) (Division Bench, unreported) | Distinguished and cited in connection with Brajendra; used to show later decisions distinguishing or qualifying earlier authority. | Cited as a later decision (distinguishing ILR 24 Pat 656) and as support for the view that Brajendra is not an authority to be followed on the present facts. |
| Brojendra Kumar Rai Chowdhuri v. Rup Lall Doss, ILR 12 Cal 515 (F) | Interpretation that S.492 (Code of 1882) was intended to have wider application than S.92 of Act VIII of 1859 with respect to injunctions against sale in execution. | Used in historical/statutory discussion to show that the power to enjoin execution sale was broadened by the Legislature and supports a wider scope for injunctions under present Code provisions. |
| Amir Dulhin v. Administrator-General of Bengal, ILR 23 Cal 351 (G) | Support for the view that the broader interpretation of provisions authorizing injunctions against sale in execution was intended. | Referenced in statutory-history discussion corroborating the broader scope of the later provisions and their applicability to restraining execution sales. |
| Abdullah Khan v. Banke Lal, ILR 33 All 79 (H) | Full Bench view that the words "wrongfully sold in execution of a decree" were intended to permit injunction even where the decree is against another person; supports broad remedial scope. | Quoted to support the interpretation that Order XXXIX, Rule 1 empowers courts to grant injunctions to prevent execution sales even when the disputed property is claimed against a decree executed against another person. |
Court's Reasoning and Analysis
The court's analysis proceeded on two complementary tracks: (1) assessment of the prima facie case and the existence of substantial injury; and (2) interpretation of the statutory power to grant temporary injunctions preventing execution sales (Order XXXIX, Rule 1 CPC), informed by legislative history and precedent.
On the facts, the court examined the plaint and the petition for injunction. The plaintiffs alleged that the Calcutta decree had been obtained by wilful and fraudulent suppression of summons and plaint, that they were unaware of the original suit and therefore could not contest it, and that their house had been attached and faced sale in execution. The court found from these allegations that the plaintiffs had established a clear prima facie case and had shown a case of substantial injury (risk of wrongful sale and consequent irreparable loss). Based on these factual findings, the court considered that granting temporary injunction to maintain status quo was just and proper.
On legal principles, the court focused on Order XXXIX, Rule 1 of the Code of Civil Procedure (CPC), quoting its text and tracing its origin through statutory predecessors (S. 92 of Act VIII of 1859; additions in Act X of 1877 and S. 492 of Act XIV of 1882). The court emphasized that the later statutory language expressly added the phrase "wrongfully sold in execution of a decree," broadening the court's power to grant injunctions so as to include circumstances where property claimed by the plaintiff is in danger of being wrongfully sold in execution of a decree against another person or even against the claimant himself.
The court distilled the governing standard for interim injunction under O. XXXIX, R. 1: the court must be satisfied that the plaintiff's claim is bona fide and there is a fair and substantial question to be tried as to the rights of the parties. It is not necessary (and not proper) for the injunction court to decide the merits; the test is whether there is a fair point for trial. This principle was supported by cited authorities (notably Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad and Province of Bihar v. Kamakshya Narain Singh).
The court addressed the authorities relied upon by the appellant (including Brajendra v. Kashibai and Dalip Narayan Singh v. Srimati Amarbas Kuer), finding them distinguishable on facts and not binding for the present case. In particular, the court observed that the restrictive passage in Brajendra had not been followed in subsequent decisions of the court and that Dalip Narayan Singh involved different procedural circumstances (a third party instituting a title suit and post-dismissal proceedings under specific provisions).
Finally, the court considered whether the trial court had exercised its discretion judicially under O. XXXIX, R. 1 CPC and concluded that it had done so: the trial court had identified a prima facie case and a balance of convenience in favour of maintaining the status quo, and therefore properly made the ad interim injunction absolute.
Holding and Implications
Holding: The High Court dismissed the appeal and confirmed the order of the court below making the ad interim injunction absolute. The appeal was dismissed with costs and a hearing fee of Rs. 32/- was imposed.
Implications and direct effects:
- The temporary injunction preventing the defendant from proceeding with the execution (including sale in execution) of the ex parte decree remains in force pending determination of Title Suit No. 64 of 1953.
- The appellant (defendant) was ordered to pay costs and a hearing fee as above.
- The High Court directed expeditious disposal of the suit and transmission of records to the court below; the court admonished the appellant for delay in prosecution of the suit and for having called for the entire record at admission of the appeal instead of pressing for an early hearing.
- The decision applies existing principles (bona fide contest; fair and substantial question; prevent multiplicity of proceedings) to uphold an injunction restraining execution sale where the claimant challenges the decree as obtained by fraud; the opinion did not purport to lay down a novel precedent beyond the application of these established principles on the facts of the case.
Dayal, J.:— This is an appeal by the defendant under O. 43, R. 1(r) of the CPC. 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.
2. 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. 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.”
5. An ad interim injunction was granted and notices were issued on the defendant.
6. 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.
7. 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.”
8. Being thus aggrieved, the defendant has filed the present Miscellaneous Appeal.
9. 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, ILR 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).
10. 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 — unreported (E).
11. 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.
12. 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.”
13. 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.
14. For these reasons I would confirm the order of the court below and dismiss this appeal with costs; hearing fee Rs. 32/-.
15. 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.
16. Sinha, J.:— 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 O. XXXIX, R. 1 of the CPC (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.
17. The relevant portion of O. XXXIX, R. 1 of the CPC, 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”.
18. 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 S. 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…..”
19. 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 S. 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 property in dispute in a suit is in danger of being…. wrongfully sold in execution of a decree…—. the Court may by order………………………..”
20. This S. 492, therefore, is in almost the same terms as O. XXXIX, R. 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 S. 492 of the Code of 1882 was intended to have a wider application than S. 92 of Act VIII of 1859.
21. 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.
22. Order XXXIX, R. 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 O. XXXIX, R. 1 of the CPC, 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).
23. It was held in the case of AIR 1950 Pat 366 (C) that in granting temporary injunction under O. XXXIX, R. 1 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”.
24. 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)…”
25. 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 O. XXI, R. 63 of the CPC after his claim under O. XXL R. 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 O. XXXIX, R. 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 O. XXXIX, R. 1 of the CPC has not been exercised judicially.
H.G.P
26. Appeal dismissed.
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