KANWAR SAIN Vs. VEER SINGH ALIAS VIRENDER KUMAR

JUDGEMENT

(1.) This is a plaintiff's appeal against an order of Mr. Ved Prakash, Subordinate Judge 1st Class, Delhi, dated the 7th January, 1955, refusing to issue an injunction under Order 39 rule 1 of the Code of Civil Procedure against the defendants. The joint family consisted of Rajinder Singh and Veer Singh and I am told that Prem Wati wife of Veer Singh has also been taken to be a member of the joint family. A debt on pronote was incurred sometime prior to 1953 and on the 22nd June, 1953 a decree for Rs. 7,126/14/- was passed against the father on the basis of this pronote. A house belonging to the joint family was mortgaged for Rs. 25,000 on the 3rd March, 1948 and a suit was brought to enforce the mortgage. A preliminary decree was obtained, and I am now told that a final decree was passed for Rs. 36,000 odd on the 19th January, 1955 with future interest at 6 per cent.

(2.) On the 28th of December, 1954 a suit was brought by the decree-holder Kanwar Sain for a declaration and injunction. The facts in regard to the decree on a pronote and preliminary decree on the mortgage were alleged in paragraph No. 2 of the plaint. In paragraph No. 5 of the plaint it was alleged that the property mortgaged was worth about Rs. 20,000, and then it was alleged that a partition had taken place between the father and son as a result of which the son obtained a decree for Rs. 24,293/8/2 and on execution being taken a house had been sold for Rs. 29,000. The plaintiff attacks this decree passed in favour of the son as being fraudulent and inoperative and to defeat the delay the creditors, although the words "default and delay the creditors" are not in the plaint. In paragraph 9(iii) the plaintiff has alleged :

(3.) The learned Judge has held that no case has been made out for the issue of an injunction and the plaintiff has come up in appeal to this Court.