Quazi Talifiqur Rahman vs Sital Prasad Das and Others

K. Lahiri, J.—This is an application under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure, hereinafter to be referred to as "the Code". The applicant invokes the power of the Court to quash an order dated 20-11-1974 passed by Shri D. Saikia, Sadar Munsiff, Gauhati in Title Suit No. 151 of 1969 whereby he directed that the execution of the decree in T. S. No. 46 of 1964 be stayed pending final disposal of the Title Suit No. 151 of 1969 in exercise of his power under Order 21, Rule 29 of the Code.

The requisite facts are that the present petitioner as Plaintiff filed a suit for ejectment against the predecessor of the opposite parties, hereinafter to be referred to as "the predecessor". In the said suit, the predecessor entered his appearance and contested the suit by filing written statement whereupon issues were also framed. Thereafter, "the predecessor" defaulted in appearance in Court and in due course an ex parte decree was passed against the predecessor and thereafter, the predecessor tried unsuccessfully to revive the ex parte decree. Then the present petitioner put the decree into execution against "the predecessor" and subsequently on the death of "the predecessor" the opposite parties were impleaded as parties in the said Execution proceedings who contested the execution proceeding but were unsuccessful. The present Title Suit No. 151 of 1969 was filed by "the predecessor" and it is submitted at the bar that on 23-2-1970 the present Opposite parties were substituted in place of the original judgment-debtor, namely, "the predecessor". The cause title of the present suit indicates that it is a suit for declaration that the decree obtained by the present petitioner in T. S. No. 46 of 1964 was a nullity as it was obtained by practising fraud on the Court. It may be stated here that on perusal of the plaint itself I did not find any material whatsoever to show that any particulars of fraud in any form whatsoever were pleaded therein. On perusal of the plaint I find that in fact no allegation has been made out in the body of the plaint nor any allegations have been made therein so that I may treat the suit to be a suit for declaration that the decree may be declared null and void on the grounds of either fraud or collusion. In fact no allegation of fraud is there excepting a vague and general allegation that the present petitioner has obtained the decree fraudulently. In my opinion, in a suit of this nature it is the duty of plaintiff to specify the particulars of fraud and collusion under Order 6 Rule 4 of the Code. Thereafter, in the present suit the present opposite parties filed an application under Order 39 of the Code with a prayer to injunct the present petitioner from proceeding with the execution case being Title Execution Case No. 25 of 1969. The learned Sadar Munsiff, Gauhati rejected the said application and that too rightly and thereafter an appeal was preferred by the petitioner against the said order but the same was also dismissed.

Thereafter, an application was made by the opposite parties purported to be an application under Order 21, Rule 29 of the Code praying for stay of the said Execution Case No. 25 of 1969. The learned Munsiff allowed the prayer by the impugned order and hence this application.

I have heard the Learned Counsel of the parties and perused the records. The sole ground on which the learned Sadar Munsiff has exercised his jurisdiction under the said order is that a suit has been filed by the plaintiffs praying for a declaration that the decree was obtained by the petitioner fraudulently or collusively and according to him this gives him jurisdiction to stay proceedings in a regularly constituted Court of law without caring to note that the question of issuing an order to a party restraining him from proceeding with any other suit or proceedings in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice. As I have already stated there was no averment made, either expressly or by implication, in the plaint making any Specific case of fraud in obtaining the previous decree and as such the basis of exercise of powers under Order 21 of the Code by the trial Court was absent or non-existent The learned Sadar-Munsiff did refer to in his order about the previous application under Order 39 of the Code made by the opposite parties and about its rejection. But did not consider at all the impact thereof. The learned Munsiff did not consider the relevant factors which go to the root of the exercise of power under Order 21, Rule 29 of the Code. He did not consider the effect of a lawfully obtained subsisting decree. He has not as well considered that only in exceptional cases the powers under Order 21, Rule 29 of the Code should be exercised and that too when the interest of Justice required. In the present case the foundation of the exercise of the powers by the Trial Court is absent. That is to say, this is not a suit alleging fraud or collusion to set aside the original decree or praying for a declaration that the decree is a nullity. Under the circumstances the Court had no jurisdiction to stay the proceedings in Title Execution Case No. 25 of 1969. The question of multiplicity of litigation therefore does not arise at all. Under the above circumstances the question of infructuous result of the suit also cannot arise. One is only to look at the plaint and reject the contention in view of the pleadings and the prayer made in the plaint.

Under these circumstances, it must be held that the trial Court has acted in the exercise of its jurisdiction illegally and with material illegality in exercising power under Order 21, Rule 29 of the Code.

Therefore, I set aside the impugned order dated 20-11-1974 in exercise of power u/s 115 of the Code. In view of the submissions made at the bay that the opposite parties are poor "Washermen" I award no cost against them. Parties are to bear their own cost.