Y VENKATESWARA RAO Vs. T VENKATA SUBBAYYA

JUDGEMENT

(1.) O.S.No. 240 of 1975 was filed for recovery of a sum of Rs, 25.664/- against the present appellant and another. The suit was filed on the basis of a promissory note executed by the defendants on 17. 7. 1979. In that suit summons were issued and were served on the two defendants. The C M A 124/79 Dated. 23-7-1979 present appellant who was the first defendant in that suit, did not file any written statement. But he says that he had authorized the second defendant to file a written statement. In the written statment filed by the second defendant, there was no plea raised regarding the falsity of the claim or any other circumstances vitiating the execution of the promissory note,. The only plea raised was that the present appellant is a small farmer. The trial court rejected that plea and decreed O.S.No. 240 of 1975.

(2.) The present appellant bad filed O.S. 342 of 1977 in the court of the II Addl. Sub-Court, Vijayawada, to set aside the decree in O.S. 240 of 75 on the ground that the decree which was earlier passed against him in O. S. 240/75 was vitiated by fraud and was obtained by collusion between the plaintiff and the second defendant therein. Pending hearing of O.S. 342 of 77 the appellant had filed I. A. 3924/77 praying that an injunction may be granted restraining the plaintiff-decree-holder in O.S.No. 240/75 from executing the decree against the present appellant. The aforesaid I.A. 3924 of 1977 was filed under Order 39 Rule I Civil Procedure Code.

(3.) The II Addl. Subordinate Judge, Vijayawada, dismissed the aforesaid I,A. 3924 of 1977 on two grounds. In law, the learned Subordinate Judge held, that the plaintiff in O.S. 240/75 cannot be restrained by an order of injunction under Order 39 Rule 1 of Civil Procedure Code from executing his decree pending the disposal of the present suit. On facts the learned Subordinate Judge held that "the conduct of the petitioner in the prosecution of the earlier suit even on the allegation in the plaint amounts to gross indifference and 1 am therefore of the opinion that such a person cannot plead that the balance of convenience lies in his favour". Having been aggrieved of that order of the learned Subordinate Judge, Vijayawada, the appellant nas preferred this Civil Miscellaneous Appeal,