D. Pathak, (Acting) C.J.
1. This revision petition is directed against an order dated 22nd November, 1975 passed by the learned Assistant District Judge, Dibrugarh and Lakhimpur at Dibrugarh in Misc. Appeal No. 2 of 1975, affirming the order dated 11th. January, 1975 in Title Suit No. 5 of 1975, rejecting the prayer for injunction.
2. The 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 pelilioner 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 dismissed for default, and thereafter the petitioner filed another petition for revival of the aforesaid Misc. Case No. 363 of 1972 and that thereafter the opposite party and the petitioner entered into an agreement to the effect that the petitioner would be allowed to reamain in possession of the house and opposite party would not execute the decree and that on such assurance the petitioner did not pursue the matter, and that the petitioner having come to know that the opposite party is going to execute the decree, became compelled to file the instant title suit No. 5 of 1975 for declaration that the decree obtained by the opposite party in Title Suit No. 223 of 1971 is fraudulent and not binding against the petitioner and also for permanent injunction.
In that suit the petitioner also made an application under Order 39, Rules 1 and 2 for temporary injunction restraining the opposite party from executing the ex parte decree in Title Suit No. 223 of 1971 dated 12-5-72. The opposite party filed an objection against the prayer for temporary injunction. The learned Munsiff rejected the prayer for temporary injunction. Against that order of the learned Munsiff, the petitioner being aggrieved preferred an appeal. But the learned appellate court also dismissed
the appeal and hence this present petition.
3. From the narration of the facts it is found that the petitioner was in full knowledge of the decree passed in the earlier suit and according to his own version, there was some agreement 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 appellate Court has noticed that the subsequent petition for reviving the Misc. Case No. 363 of 1972 for setting aside the ex parte decree was also dismissed for default and that Misc. Case was registered as Misc. Case No. 8 of 1974. In the suit the petitioner has taken a ground that the ex parte decree against the petitioner was obtained fraudulently by suppressing the service of summons on him. The learned appellate Court has observed that the order passed by the learned Munsiff was under Order 21, Rule 29 C.P.C. and the same was not open to appeal. In the suit the petitioner filed a petition under Order 21, Rule 29 C.P.C. and Section 151 C.P.C. with the following prayer:
'.........it is prayed that your honour
may be pleased to pass order staying the execution of the Title Execution Case No. 9 of 1974, till disposal of the suit.'
In the above view of the statement made in the petition the learned appellate Court has held that the order passed under Order 21, Rule 29 C.P.C. is not appealable. The learned appellate Court has further held that even assuming that the petition of the petitioner was under Order 39, Rules 1 and 2 C.P.C. in that case also in view of the decision of this Court in Upendra Chandra Barman v. Nabin Chandra Su-
tradhar, AIR 1971 Assam 95 and Mira Rani v. Forman Ali, AIR 1971 Assam 157 the 'execution of a lawful and subsisting decree cannot be restrained by a temporary injunction.' Therefore, the learned appellate Court refused to grant any injunction.
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 Gauhati 56 (FB) the above two decisions, namely, AIR 1971 Assam 95 (supra) and AIR 1971 Assam 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' takes in its sweep 'harm' or 'damage' to the right of a person or property. So, a decree which prima facie appears to be illegal Or void can also be considered as causing injury to the person affected by it' In view of the above Full Bench decision, I find force in the submission made by the learned counsel that the above finding of the appellate court is not correct
6. Now the question is whether this is a case where prima facie the allegation of fraud has been established or not by the petitioner in the suit.
7. From the facts noticed above, it is seen that on earlier two occasions, he failed to press his application for restoration of the suit where ex parte decree was passed due to his own laches as noticed above, being in default. The grant of injunction by the Court is discretionary. Therefore unless the petitioner is vigilant and diligent he cannot expect the Court to grant injunction in his favour. It cannot be said that the order of the trial Court and for that matter that of the appellate court can be held to be infirm in which interference by this Court is called for. I have also gone through the order passed by the learned Munsiff where it has been noticed by that Court that the plea of not proceeding with the Misc. Case
No. 8 of 1974 was not tenable. The finding recorded by the learned Munsiff is that there was no compromise at all. The learned Munsiff has clearly recorded the finding that manner in which the petitioner dealt with the miscellaneous cases shows fhat his only motive was to cause inordinate delay. On consideration of the facts as well as for the reasons slated above, this is not a case where this Court should interfere with the order passed by the Courts below.
8. Accordingly this petition is without merit and the same is rejected. The Rule is discharged. The stay order granted by this Court on 2-3-76 stands vacated.