A court has jurisdiction to grant an injunction restraining the execution of a decree alleged to have been obtained by fraud.

P. A. CHOUDARY, J.

( 1 ) O. S. NO. 240 of 1975 was filed for recovery of a sum of Rs, 25. 664/- against the present appellant and another. The suit was filed on the basis of a promissory note executed by the defendants on 17. 7. 1979. In that suit summons were issued and were served on the two defendants. The c M A 124/79 Dated. 23-7-1979 present appellant who was the first defendant in that suit, did not file any written statement. But he says that he had authorized the second defendant to file a written statement. In the written statment filed by the second defendant, there was no plea raised regarding the falsity of the claim or any other circumstances vitiating the execution of the promissory note,. The only plea raised was that the present appellant is a small farmer. The trial court rejected that plea and decreed O. S. No. 240 of 1975.

( 2 ) THE present appellant bad filed O. S. 342 of 1977 in the court of the II Addl. Sub-Court, Vijayawada, to set aside the decree in O. S. 240 of 75 on the ground that the decree which was earlier passed against him in O. S. 240/75 was vitiated by fraud and was obtained by collusion between the plaintiff and the second defendant therein. Pending hearing of O. S. 342 of 77 the appellant had filed I. A. 3924/77 praying that an injuction may be granted restraining the plaintiff-decree-holder in O. S. No. 240/75 from executing the decree against the present appellant. The aforesaid I. A. 3924 of 1977 was filed under Order 39 Rule I Civil Procedure Code.

( 3 ) THE II Addl. Subordinate Judge, Vijayawada, dismissed the aforesaid I,a. 3924 of 1977 on two grounds. In law, the learned Subordinate judge held, that the plaintiff in O. S. 240/75 cannot be restrained by an order of injunction under Order 39 Rule 1 of Civil Procedure Code from executing his decree pending the disposal of the present suit. On facts the learned subordinate Judge held that "the conduct of the petitioner in the prosecution of the earlier suit even on the allegation in the plaint amounts to gross indifference and 1 am therefore of the opinion that such a person cannot plead that the balance of convenience lies in his favour". Having been aggrieved of that order of the learned Subordinate Judge, Vijayawada, the appellant nas preferred this Civil Miscellaneous Appeal,

( 4 ) MR. Parabrahma Sastry learned Counsel for the appellant submitted that in law the learned subordinate Judge is wrong in holding that no injunction can be granted restraining the plaintiff in O. S 240/75 from executing his decree. Mr. Sastry stated that when a suit has been filed for setting aside an earlier decree or judgment on the ground that it was vitiated by fraud, the theory that an interim injunction cannot be granted under Order 39 rule 1 of Civil Procedure Code would not apply. Sastry relied upon a judgement of the Madhya Pradesh High Court reported in Surendra Singh vs Lal She oraj A Division Bench of the Madhya Pradesh High Court. In that case held that it is open to the court on being provisionally satisfied that there is fraud played in obtaining the previous decree to arrest the execution of an earlier decree pending jdisposal of the subsequent suit. A Full Bench of our High Court in Appalanarasimha vs. Seethayamma decided approving a Judgment of division Bench reported in Venkanna vs. Venkata Rao, that a temprary injuotion cannot be issued to restrain the decree-holder "from executing his decree. The ratio of these decisions that Order 39 Rule 1 of Civil procedure Code would not be available to restrain the execution of an earlier decree because no one suffers an injury by execution of a decree.

( 5 ) BUT Mr. Sastry argued before us that the aforesaid Full Bench of our High Court did not consider the question whether an injunction can be granted against the execution c f a decree alleged to have been obtained by fraud and we should therefore follow the Madhya Pradesh Judgtnent. We see considerable force in the submission made by Mr. Sastry It

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