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TMI Blog2005 (12) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... o for recovery of khas possession by evicting the present respondent and others from the said suit property. On being decreed, the appeal being Title Appeal No. 80/03 was preferred by the present respondent in the Court of the learned Civil Judge (Senior Division), Kamrup, Guwahati which was dismissed vide judgment dated 30.7.2004 affirming the judgment and decree passed by the learned Trial court. Being aggrieved, the respondent preferred R.S.A. No. 159/04 before the High Court which was, however, dismissed vide judgment dated 1.10.2004 as no substantial question of law was involved in the appeal. The Special Leave Petition being S.L.P. (Civil) No. 23651/04 filed by the respondent challenging the order dated 1.10.2004 passed in R.S.A. No. 159/04, was also dismissed by the Hon'ble Supreme Court vide order dated 29.11.2004. The appellants after dismissal of the Second Appeal by the High Court, put the decree passed in Title Suit No. 494/96 into execution, wherein,the respondent on 11.10.2004 filed an application for stay execution of the said decree on the ground that he was taking steps in filing SLP before the Hon'ble Supreme Court, and hence the execution may be stayed ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for permanent injunction restraining the appellants from executing the decree passed in Title Suit No. 494/96 and from evicting the plaintiff-respondent from the land described in Schedule 'C'. In the said suit the respondent also filed an application under Order 39 Rules 1 and 2, read with Section 151 CPC praying for temporary injunction for restraining the defendants-appellants herein from interfering with the possession of the plaintiff (the respondent herein), over the suit land described in Schedule 'C' of the plaint, which was registered as Misc(J) Case No. 114/05. The learned Trial Court upon hearing the learned Counsel for the parties, vide order dated 3.11.2005 passed the order of injunction restraining the defendants (appellants herein) from interfering with the possession of the plaintiff (respondent herein) over the land described as Schedule 'C' of the plaint, Schedule 'B' of T.S. No. 494/96 till disposal of the suit. The learned Executing Court also in the meantime, vide order dated 8.11.2005 rejected the application under Section 47 as well as under Section 151 CPC filed by the respondent herein objecting the execution of the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-plaintiff in T.S. No. 202/05 and hence, the plaintiff-respondent does not have strong prima-facie case for the purpose of granting temporary injunction. It has further been submitted by the learned Senior counsel that the respondent, after passing of the decree in the earlier suit and dismissal of the appeals by the learned First and Second Appellate Court, cannot be allowed to contend that the suit property was not properly described in the earlier suit and the decree in the earlier suit was obtained fraudulently because the suit was barred by time. Mr. Goswami, referring the statements made in the Title Suit No. 202/2005 has contended that the respondent has alleged fraud not against the plaintiff in T.S. No. 496/96 but against the Court who passed the decree in the said suit by alleging that fraud was committed by that Court by entertaining a time barred suit. Referring to the provision of Order 6, Rule 4 of the CPC, Mr. Goswami, learned Senior counsel has submitted that where in a suit fraud is alleged the party alleging such fraud must furnish all material particulars constituting such fraud and in the instant case the plaint filed by the respondent does not disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree is a nullity and therefore the suit filed by the respondent praying for a decree for declaration that the decree was obtained fraudulently in T.S. No. 494/96 is maintainable and hence, the learned Trial court has rightly passed the order of injunction, otherwise the respondent will be evicted from the land in question by executing the decree passed in T.S. No. 494/96. According to the learned Counsel, the earlier suit was governed by Article 58 of the Limitation Act, as it was a suit for declaration and therefore it has to be filed within 3 years from the date when the possession under Section 145 Code of Criminal Procedure was declared in favour of the respondent by the learned Executive Magistrate. According to the learned Counsel, admittedly, the suit was not filed within 3 years from 19th February 1991, i.e., the date when the possession was declared under Section 145 CrPC and therefore the earlier suit was out and out a time barred suit and the decree passed therein is a nullity. Mr. Das, learned Counsel has further contended that even if the question of limitation was not raised by the respondent in the earlier suit, a duty was cast on the court by virtue of Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court is also required to see the conduct of the parties. 8. In Shiv, Kumar Chandha (supra), the Apex Court has held that, a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. Before such order of injunction is passed, the Court must be satisfied that a strong prima-facie is made out by the plaintiff including the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. It has further been held that the power to grant injunction is an extra ordinary power vested in the Court, which has to be exercised taking into consideration the facts and circumstances of each case. 9. In Ravinder Kaur (supra), the Apex Court while dealing with a case relating to the eviction of a tenant, wherein a decree was passed and the execution of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised in the pleadings, it does not mean that where the court fails to perform his duty, it acts without jurisdiction and in that case it is merely an error of law which can be corrected only in the manner laid down in the CPC. It has further been held that if the suit was barred by time and yet the court decreed it, the court would be committing an illegality and therefore aggrieved party is entitled to have the decree set aside by preferring an appeal against it, but at the same time, a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right, may decide wrong and even though it decided wrong it would not be doing something which it had no jurisdiction to do. The Apex court, therefore, held that the decree passed in a time barred suit cannot be treated as nullity. 14. In Sunder Dass (supra), the Apex Court has held that executing court can neither go behind the decree nor can it question its legality or correctness, but where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding and the Executing Court can ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not succeed. The respondent, in the meantime, tiled-present suit being T.S. No. 202/05 praying for a decree declaring that the decree passed in T.S. No. 494/96 was obtained by fraud. The respondent became successful in getting an order of temporary injunction in the said suit restraining the appellants herein from interfering with his possession in respect of Schedule 'C' property. 19. The allegations of fraud in T.S. No. 202/05 filed by the respondent is basically based on the assertion that the T.S. No. 494/96 was barred by time, the same having not been filed within 3 years from the date of declaration of possession by the learned Executive Magistrate in a proceeding under Section 145 CrPC. From the reading of the plaint filed in T.S. No. 202/05, it appears that the respondent alleged fraud against the court who passed the decree and not against the appellants who were the plaintiffs therein. The respondent in the plaint has seated that the fraud has been committed as the Court has entertained a time barred suit and as it failed to discharge its duty to decide the question of limitation as required under Section 3 of the Limitation Act, even though the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said suit was for declaration of right, title and interest and recovery of khas possession by evicting the present respondent and others and not the suit for declaration that the order passed in 145 CrPC proceeding was illegal and void. However, this is our prima-facie view for the purpose of scrutinizing as to whether the respondent has a strong prima-facie for the purpose of granting injunction. 22. The learned court below while granting the injunction has failed to take into consideration the aforesaid aspect of the matter and injuncted the appellants from interfering with the possession of the respondent over the suit land, which in effect is an order of injunction restraining the appellants from executing the decree passed in T.S. No. 494/96. The learned court below has also failed to take into consideration the irreparable loss and injury that would be caused to the appellants, who were plaintiffs in the said suit, in granting the order of injunction. 23. In view of above, we are of the considered opinion that the respondent has failed to make out a strong prima-facie case for granting injunction. The balance of convenience is also not in favour of the respondent for granti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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