FATIMA FOUZIA Vs. WALASHAN PRINCE MOAZZAM JAH BAHADUR

JUDGEMENT

(1.) The appellant is the defendant is O. S. 732/78 and respondent in I. A. No. 754/78 in this suit before the VI Additional Judge, City Civil Court, Hyderabad. I. A. 754/78 was filed for an injunction restraining the appellant herein from proceeding with E. P. No. 31/77 in O. S. 329/77 and from withdrawing any amount whatsoever in pursuance of the said proceeding pending disposal of the suit O. S. 732/78. The appellant filed the suit O. S. 329/77 on foot of a promissory note executed by the respondent herein for a sum of three lakhs on the file of the I Additional Judge, City Civil Court, Hyderabad. The suit was filed on 8-6-1977 and summonses were served on 7-7-1977. On 8-7-1977 to which date the suit was posted for first hearing, the defendant in that suit filed a written statement admitting the claim, but prayed permission for paying the amount in instalments. Accordingly the suit was decreed on 8-7-1977.

(2.) The present suit was filed by the respondent herein for a declaration that the decree in O. S. 329/77 was obtained by fraud. The main contention was that vakalat was not given by him in favour of the advocate who purported to represent him and the written statement also was not filed by him. He was not aware of the decree until a long time afterwards when it was sought to be executed against him. The decree-holder filed E. P. 31/77 in execution of the decree obtained by him in O. S. No. 329/77. In those proceedings a sum of Rs. 1,80,000 was deposited by the Nizams Trust being the amount payable by the trust to the judgment-debtor for medical expenses. The respondent herein thereupon filed an application for an injunction restraining the appellant from proceeding with the execution of the decree and from drawing the amount deposited by the Nizams Trust.

(3.) The Court below held that the plaintiff, respondent herein had established a prima facie case for staying the proceedings in execution. Hence, it granted a temporary injunction restraining the appellant from proceeding with the execution. An interim injunction granted earlier was made absolute after hearing both the parties.