NOORJAHAN BIBI Vs. RAHIMA BIBI

JUDGEMENT

(1.) The defendants/respondents of Miscellaneous Appeal No. 153 of 2000 have challenged the judgment and order dated 19.1.2001 passed by the learned Additional District Judge, 4th Court, Barasat, 24 Parganas North, whereby miscellaneous appeal as arose out of challenge of Order No. 31 dated 20.4.2000 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat, refusing to grant injunction in the application under-Order 39 Rules 1 and 2 of the Code of Civil Procedure in Title Suit No. 325 of 1995 as filed by the plaintiffs therein, was allowed, allowing such application for injunction and restraining the defendants/respondent Nos. 1 to 3 by way of temporary injunction from executing further the Title Execution Case No. 11 of 1991 and from disturbing the possession of the plaintiffs/appellants over the suit property till disposal of Title Suit No. 325 of 1995.

(2.) For appreciation of the impugned order, factual matrix is required to be considered.

(3.) Title Suit No. 576 of 1973 was filed by the present petitioners as plaintiffs therein before the 3rd Court of Munsif at Sealdah against Wajedali Sardar, Entaj Sardar and Others. The said suit was a suit for declaration and injunction and the suit was decreed ex parte against the defendants declaring the ownership of the suit property as of the plaintiffs and restraining the defendants from using the tank which was in the scheduled property and catching or rearing fish therein and also from interfering with the possession of the plaintiffs in the said tank under 'A' schedule property of the suit. Such judgment and decree was passed on 22.12.80. The decree was put into execution being registered as Title Execution Case No. 11 of 1991. In this Title Execution Case, as application under Sec. 47 of the Code of Civil Procedure was filed by the legal heirs of Entaj Sardar, who was a defendant in Title Suit No. 576 of 1973 praying, inter alia, that the decree since became a nullity upon exercise of fraud as no summons were served upon the predecessor-in-interest of such applicants and on ground that during pendency of the suit since the predecessor-in-interest breathed last there was an automatic abatement of the suit, such decree was not possible to be executed. This application was registered as Miscellaneous Case No. 18 of 1995 and the same is pending before the executing Court for decision.