SADANANDASWAMY, J. :-

The petitioners brought a suit for a declaration that the final decree passed in Title Suit No. 12 of 1968 in the Court of the District Judge, Cachar is void and inoperative. They alleged that the appointment of the Amin Commissioner and apportionment of shares were all done behind their back, that the final decree for partition has not been engrossed on proper stamp paper and therefore not existent in the eye of law and inoperative. The suit was numbered as Title Suit No. 35 of 1970 in the Court of the Assistant District Judge, Cachar, Silchar. The petitioners prayed for an ad interim injunction against the defendants restraining them from executing the said decree. The defendants filed their objections. The learned Assistant District Judge heard both the parties and came to the conclusion that there was no valid and proper final decree in Title Suit No. 12 of 1968 as it was not drawn up on the requisite stamp paper. He held that the petitioners have established a prima facie case and are entitled to an injunction and that irreparable injury would be caused to them if the decree is allowed to be executed. He also held that great inconvenience would be caused to the petitioners if injunction is not granted. He, therefore, ordered that the ad interim injunction issued earlier in favour of the petitioners should continue. The respondent preferred an appeal against the said order. The Lower Appellate Court relied on the decision of this Court in ILR (1952) 4 Assam 160 : (AIR 1953 Assam 104) (Abdul Hamid Khan v. Tridip Kumar) wherein it has been held that the execution of a decree does not amount to an injury and that an injunction cannot be issued restraining the decree-holder from executing the decree, even though hardship may be caused to the judgment-debtor. In view of this decision injunction was vacated. Against this order a Misc. Appeal was filed by the present petitioners. When the appeal came up for hearing before a learned Single Judge he was of the opinion that the appeal should be heard by larger Bench in view of conflicting decisions of this Court itself on the question as to whether the execution of a decree obtained in a previous suit can be stayed by an injunction in a subsequent suit where the decree of the previous suit was challenged on the ground of fraud. The appeal thereafter came up before a Division Bench. It was conceded before the Division Bench that the Misc. Second Appeal is not competent against the Appellate Order, but it was submitted by the present petitioners that an alternative revision application had been filed. The Division Bench, therefore, ordered that the matter may be heard as a Revision Petition. When the Revision petition again came up before the Division Bench it noticed that there were several Single Bench decisions to the same effect as AIR 1953 Assam 104 (Abdul Hamid Khan v. Tridip Kumar) but that there was an unreported decision of a Division Bench of this Court in Misc. Appeal (F) No. 23 of 1956 (Ganeshilal Khaitan v. Kshitish Chandra Kar) rendered on 19-5-1958 wherein this Court held that O. 39, R. 2 was attracted when a temporary injunction was sought for against the execution of a decree in a suit challenging the validity of the decree on the ground of fraud. It was also held that in any event a temporary injunction could be granted under S. 151 C P. C. The Division Bench, therefore, was of the opinion that this is an important question of law which should be decided by a Special Bench. That is how it has come up before this Bench.

2. In ILR (1952) 4 Assam 160: (AIR 1953 Assam 104) (Abdul Hamid Khan v. Tridip Kumar) two minors instituted a suit for a permanent injunction restraining the defendants from executing the decree alleging that there was no service on them, their guardian was not properly appointed, their interests were not looked after and that the decree had been obtained against them by the defendants by fraud. Following the decisions in A