ADIRAM SARMA Vs. DEOKINANDAN AGARWALLA

JUDGEMENT

(1.) CTHIS revision petition is directed against an order dated 22nd November, 1975 passed by the learned Assistant District Judge, Dibrugarh and Lakhimpur at Dibrugarh in Misc. Appeal No.2 of 1975, affirming the order dated 11th January, 1975 in Title Suit No.5 of 1975, rejecting the prayer for injunction.

(2.) THE brief narration of the facts is that the petitioner brought a suit against the opposite party being on the allegations, inter alia, that the opposite party had brought a suit against the petitioner being Title Suit No.223 of 1971: in the Court Of the Munsiff Dibrugarh, for arrears Of rent and ejectment and fraudulently obtained a decree ex parte against the petitioner by suppressing summons and keeping the petitioner out of the knowledge of the said suit, and that the petitioner having knowledge of the ex parte decree, filed a petition under Order 9, Rule 13 Civil Procedure Code, for restoration Of the suit after vacating the ex parte decree, but that the said revival case which was registered as Misc. Case No.363 of 1972 was unfortunately dismissed for default, and thereafter the petitioner filed another petition for revival of the aforesaid Misc. Case No.363 of 1972 and that thereafter the opposite party and the petitioner entered into an agreement to the effect that the petitioner would be allowed to remain in possession of the house and opposite party would not execute the decree and that on such assurance the petitioner did not pursue the matter, and that the petitioner having come to know that the opposite party is going to execute the decree, became compelled to file the instant title suit No.5 of 1975 for declaration that the decree obtained by the opposite party in Title Suit No.223 of 1971 is fraudulent and not binding against the petitioner and also for permanent injunction. In that suit the petitioner also made an application under Order 39, Rules 1 and 2 for temporary injunction restraining. The opposite party from executing the ex parte decree in Title Suit No.223 of 1971 dated 12-5-72. The opposite party filed an objection against the prayer for temporary injunction. The learned Munsiff rejected the prayer for temporary injunction. Against that order of the learned Munsiff, the petitioner being aggrieved preferred an appeal. But the learned appellate court also dismissed the appeal and hence this present petition.

(3.) THE learned appellate Court has noticed that the subsequent petition for reviving the Misc. Case No.363 of 1972 for setting aside the ex parte decree was also dismissed for default and that Misc. Case was registered as Misc. Case No.8 of 1974. In the suit the petitioner has taken a ground that the ex parte decree against the petitioner was obtained fraudulently by suppressing the service of summons on him. The learned appellate Court has observed that the order passed by the learned Munsiff was under Order 21, Rule 29 C.P.C. and the same was not open to appeal. In the suit the petitioner filed a petition under Order 21, Rule 29 C.P.C. and Section 151 C.P.C. with the following prayer: