1981 (12) TMI 186

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he 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 P.C. 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 dismis....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....eement that he would be allowed to stay in the premises. Therefore, the question of fraudulently obtaining the ex-parte decree does not appear to have been established. From the facts also it is clear that on two occasions the ex-parte decree in the earlier suit was sought to be set aside. On the first occasion, the Misc. Case No. 363 of 1972 was dismissed for default and thereafter the petitioner filed another petition for revival of the aforesaid Misc. Case No. 363 of 1972 and according to his own version the opposite party and the petitioner entered into an agreement that the petitioner would be allowed to remain in possession of the house as before and therefore it is averred that the petitioner did not bring any suit. 4. The learned....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....on. 5. Mr. D.N. Baruah, the learned counsel for the petitioner has submitted that in view of the Full Bench decision of this Court in Tazmul Ali v. Md. Ulairaja AIR 1978 Gau 56 the above two decisions, namely AIR 1971 Gau 95 (supra) and AIR 1971 Gau 157 (supra), are no longer good law. In Tazmul AH (supra), the Full Bench has held that "when a plaintiff shows a prima facie case on the allegation of fraud challenging the disputed decree, to refuse injunction would in effect be granting a charter to the defendant-decree-holder to Perpetrate fraud. In such a case if as a consequence of refusal of injunction, the decree is executed, it would be clearly an injury within the meaning of Rule 2 of Order 39 C.P.C. The expression 'injury' ....