Order 21 Rule 101 CPC bars the filing of a separate suit for determination of questions arising in execution proceedings, including questions relating to fraud.

( 1 ) THIS appeal is directed against an order no. 36 dated 13th December, 1995 passed in Title Suit No. 1105 of 1992 by the learned Judge. IXth Bench, City Civil Court, Calcutta. By the said order, injunction was granted against the defendant/appellant restraining her from proceeding with the Execution Case No. 60 of 1991 arising out of Title Suit No. 567 of 1989.

( 2 ) THE plaint case, inter alia, was that the appellant/defendant had instituted a suit for eviction of licensee against the husband of the plaintiff respondent herein and obtained an ex parte decree in the said suit. In the circumstances, the plaintiff/respondent had filed a Title Suit, being no. 1105 of 1992, for declaration that the said decree was obtained by found and not binding upon her. In connection with the said suit, the plaintiff respondent had filed an application for injunction restraining the appellant/defendant from proceeding with the said Execution Case No. 60 of 1991 seeking to execute the ex parte decree obtained by the defendant/ appellant in Title Suit No. 567 of 1989. Injunction having been granted, the same is being challenged in this appeal.

( 3 ) LEARNED Counsel for the appellant points out that in view of Order 21 Rule 101 of the Code of Civil Procedure, the suit cannot be maintained since all questions between the parties are to be decided in a proceeding under Order 21 Rule 97 of the Code of Civil Procedure and not by way oi a separate suit. According to him, the respondent herein is a parry to the application under Order 21 Rule 97 of the Code of Civil Procedure. which is still pending before the learned Executing Court. Therefore, the suit being not maintainable, no injunction can be granted. He had also pointed out certain facts in order to show that there is no such allegation made out in terms of Order 6 Rule 4 of the Code of Civil Procedure specifying the details of fraud a'nd as such the suit cannot be treated to be a suit on the basis thereof. Further he contended that even the question of fraud can be gone into In a proceeding under Order 21 Rule 97 of the Code of Civil Procedure in view of Rule 101 thereof. He also contended that it is not only the judgment-debtor but also the person resisting execution of the decree is a party under such proceeding and in such a case Order 21 Rule 101 of the Code of Civil Procedure applies in full force. He also relied on the decision in Shreenath vs. Rajesh. AIR 1998 SC 1827. in support of his contention.

( 4 ) MR. Bhattacharjee, learned Counsel for the respondent, on the other hand, contends that when it is a case of fraud, the suit is maintainable. According to him, the appellant has not claimed through her husband against the decree as obtained. He has contended that there was allegation of fraud. If there is allegation of fraud, the suit can be brought under section 44 of the Evidence Act independent of Order 21 Rule 97 read with Rule 101 of the Code of Civil Procedure. He has asserted that there are sufficient grounds of fraud alleged in the plaint and that a pr ma facie case has since been made out and as such, the suit is very much maintainable. According to him, at least there is a prima facie case which is to be determined. Even if it appears that the suit would fail, still then when the question of fraud is raised which requires determination, where a prima facie case is made out, the order of injunction can very well be passed. Therefore, the injunction was rightly passed. It is also contended that unless the respondent is made party in the proceedings under Order 21 Rule 97 of the Code of Civil Procedure, the proceedings of Rule 101 thereof would not be applicable. Therefore, the appeal should be dismissed.

( 5 ) WE have heard the learned Counsel for the respective parties at length.

( 6 ) ADMITTEDLY, the application under Order 21 Rule 97 of the Code of Civil Procedure has been filed. Learned Counsel for the appellant submits that the respondent herei