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 present appellant did not file any written statement. But he says that he had authorised the second defendant to file a written statement. In the written statement 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 19745.
2. The present appellant had 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 1975 on the ground that the decree which was earlier passed against him in O. S. 240/1975 was vitiated by fraud and was obtained by collusion between the plaintiff and the second defendant therein. Pending hearing of O. S. 342 of 1977 the appellant had filed I. A. 3924/77 praying that an injunction 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 1 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 of 1975 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 I 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 has 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. 240/1975 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. Mr. Sastry relied upon a judgment of the Madhya Pradesh reported in Surendra Singh v. Lal Sheoraj : AIR1975MP85 . 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 disposal of the subsequent suit. A Full Bench of our High Court in Appalanarasimha v. Seethayamma, : AIR1959AP310 decided approving a judgment of Division Bench reported in A. Venkanna v. R. Venkatarao, (AIR 1957 Andh Pra 453) that a temporary injunction cannot be issued to restrain the decree-holder from executing the decree. The ration of these decisions is 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 be 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 of a decree alleged to have been obtained by fraud and we should therefore follow the Madhya Pradesh Judgment. We see considerable force in the submission made by Mr. Sastry. It is well know that any order made by a court on the basis of fraud will be incapable of either constituting or extinguishing legal rights. As Lord Denning stated in Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341at P. 345. 'no judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud'. But the question is what is to happen till the decree is set aside? We hold that the court has jurisdiction to decide the question provisionally and issue an injunction restraining the execution in appropriate cases. Otherwise Courts fail to protect the judgment debtor from suffering substantial injury. We do not understand the aforesaid Full Bench of our High Court as having laid down any rule contrary. In fact such a point as the present one was never considered by the Full Bench. If Mr. Sastry, had therefore succeeded on the facts of this case on showing to us that there is a prima facie proof of fraud played by the plaintiff in the suit we would have granted him the injunction. But on the facts we are not satisfied that there is any proof of fraud having been played by the plaintiff in the previous suit. Mr. Sastry's client had received summons but had chosen never to contest the matter. Even after the decree was passed he never made a complaint of it either by way of appeal or by way of review. The second defendant whom he had admittedly authorised to file written statement never pleaded fraud vitiating the execution of the promissory note. In these circumstances the plea of fraud which is now raised by Mr. Sastry must be taken to be an ad-hoe plea raised for the purposes of this appeal only. We therefore reject this contention.
6. Finally Mr. Sastry, submits that the decree-holder may be directed to proceed first against the second defendant joint-debtor. This is something which we cannot do. It is the right of the creditor to choose against which one of the several joint judgment-debtors he should proceed. In view of the above, we dismiss this Civil Miscellaneous Appeal but without costs.
7. Appeal dismissed.