A temporary injunction can be granted under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908, to restrain the wrongful sale of property in execution of a decree, where the property in dispute in the suit is in danger of being wrongfully sold.

Dayal, J.

1. This is an appeal by the defendant under Order 43, Rule 1 (r) of the Code of Civil Procedure. The relevant facts are these-

The defendant obtained an ex parte decree for Rs. 5019/9/6 in Commercial Suit No. 345 of 1952 from the Original Side of the Calcutta High Court against the plaintiffs. The decree-holder proceeded with the execution of the decree and filed Execution Case No. 5 of 1953 in the court of the Subordinate Judge of Ranchi where the decree had been transferred for execution. In execution, the decree-holder attached the house of the plaintiffs and wanted satisfaction of the decree by the sale of the house. The plaintiffs having come to know of the execution case, filed an objection.

The objection was dismissed on 18th November, 1953. On 7th December, 1953, the plaintiffs filed Title Suit No. 64 of 1953 for a declaration that the decree passed in the above mentioned commercial suit was not binding on them as the same had been obtained fraudulently by suppression of summonses. A prayer for perpetual injunction was also made for restraining the defendant from proceeding with the execution case. On the same day, the plaintiffs also applied for a temporary injunction. The case made out in the plaint and the petition for injunction was that the plaintiffs had a prima facie case and that they would suffer a great loss in case their house is sold in execution of the fraudulent ex parte decree.

2. The allegation in the plaint is that the said Commercial Suit was absolutely false and it had been instituted because of enmity.

3. The material allegations in the plaint are:

"14. That the defendant wilfully and fraudulently suppressed the notice and summons, issued by the Hon ble High Court in order to obtain a decree based on a false claim by preventing the plaintiffs from placing their case before the Hon ble High Court at Calcutta".

"15. That due to the fraudulent suppression of summons and notices, issued by the Hon ble High Court, the plaintiffs were in dark and, they did not and could not know about the institution of the said Commercial Suit and hence did not and could not appear and contest the suit."

"16. That the plaintiffs have suffered a great loss due to the passing of the said ex parte decree".

"17. That the plaintiffs asked the defendant several times not to proceed with the execution but they refused to do so and hence the suit."

18. That the defendant has taken out execution and has got the house attached and is trying to get it sold by auction. With a view to maintain status quo and prevent multiplicity of suits, it is necessary that a perpetual injunction restraining the defendant from proceeding with the execution case pending in your honours court be passed."

4. In the petition for temporary injunction the plaintiffs alleged as follows:

"1. That the plaintiffs have filed the above suit against the defendant for declaration that the decree obtained in Commercial Suit No. 345 of 1952 has been obtained by fraudulent suppression of summons and plaint and is not binding on the plaintiffs and for perpetual injunction restraining the defendants from proceeding with the execution".

"2. That the defendants are proceeding with the execution and are taking steps for issue of sale proclamation."

"3. That in order to prevent multiplicity of suits and maintain status quo it is necessary to issue temporary injunction -- restraining the defendant from proceeding with the suit."

"4. That the plaintiffs will suffer irreparable loss if temporary injunction is not granted."

An ad interim injunction was granted and notices were issued on the defendant.

5 The defendant resisted the application for injunction and on grounds amongst others alleged that the injunction petition had been filed simply to harass the defendant and thus to deprive him from reaping the fruits of a valid decree.

6. The court below by its order dated the 22nd June, 1954, made the order of ad interim injunction absolute and held as follow