BHABHIKAN SINGH Vs. BABU CHAKRADHAR PERSHAD SINGH

JUDGEMENT

(1.) In this case the respondents applied to the lower Court for an order of injunction restraining the appellants, who were decree holders, from executing the mortgage decree which they had obtained. The respondents also asked that the sale of the mortgaged property might be stayed pending the decision of the suit which has been instituted by them, on the ground that the decree which is sought to be executed was a fraudulent decree. The application was one for an injunction against the alleged wrongful sale in execution of a decree; and it has been held (and in this decision I entirely agree) that in interpreting this portion of the Code, a Judge cannot be too careful as to the mode in which he permits the machinery of the Court to be used for the purpose of enabling the plaintiff in one suit to delay the decree-holder in another from obtaining the fruits of his judgment by executing his decree in the ordinary course against the property of the judgment-debtor.

(2.) The learned Subordinate Judge who dealt with I his case has dealt with it without reference to any of the principles which should govern the disposal of an application of this character. The granting of an injunction is not a matter of course.

(3.) I shall deal, first, with Appeal No. 454 of 1910. The decree was passed on the 31st August 1904, that is, some six years ago. We have been informed that there was no appeal from that decree. The respondent is alleged to have attained majority about March 1903. It is also on the affidavit, and is not denied, that there were several previous executions of the decree. The present suit was instituted in July 1910; and on the institution of that suit the plaintiffs applied by petition for an order to which I have referred. In support of that application an affidavit by one Raghu Pershad was filed, in which, after stating who he is, he says.--That the decree- holders, defendants, by adopting illegal proceedings for sale in execution case We. 156 of 1910 pending in this Court want illegally to bring to sale the properties, the subject-matter of this suit. The plaintiffs apprehend a serious loss to them if the ancestral properties, the subject-matter of this suit, are sold away. That it is quite necessary for the ends of justice that a temporary injunction should be issued restraining the defendants from adopting any proceeding for sale." It is obvious that this affidavit is not a sufficient affidavit upon which any order could have been made such as that which the Subordinate Judge has made. There was before him no prima facie proof of any of the facts upon which the plaintiffs base their claim nothing, in fact, beyond the allegation that the sale was an illegal sale in execution of the decree.