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Temporary injunction designed to obstruct execution of decree obtained not allowable

(Appellate Division) (Civil) Mohammad Fazlul Karim-J. Md. Joynul Abedin-J. A.B.M. Khairul Haque-J. Civil Appeal No.579 of 2001. (From the judgment and order dated the 8th day of November, 1998 passed by the High Court Division in Civil Revision No. 1697 of 1994). Joirunnessa and others ………….Appellants. Vs. Abdul Matalib being dead his legal heirs; Alta Begum and others ………………….. ........................................... Respondents. For the Appellants : Mr. A. J. Mohammad Ali, Senior Advocate instructed by Mr. Md. Zahirul Islam, Advocate-on-Record. For the Respondents (as added): Mr. Khorshed Alam Khan, Advocate instructed by Chowdhury Md. Zahangir, Advocate-on-Record. Judgment: August 19, 2009 Code of Civil Procedure, 1908- Order 21, rule 99- When no claim as to bonafide possession is raised before the executing court- Order 39 rule 1- Temporary injunction at the instance of the plaintiff who is not a judgment debtor designed to delay the execution and frustrate the decree obtained 30 years back refused- The plaintiff is not the judgment debtor in the suit which was decreed 30 years back. He did not claim his possession in the suit land as provided under Order 21 rule 99 of the Code of Civil Procedure. The apex court held the application under Order 39 rule 1 C.P.C designed and intended to delay the execution at the fag end of the proceedings and to defeat the decree obtained 30 years back and, as such, allowed the appeal, set aside the judgment and order of the High Court Division and restored those of the trial court. It appears that the matter arose out of a suit for declaration of title in the suit land with a prayer for recovery of khas possession being a person who does not claim to be judgment-debtor in the previous suit decreed in favour of the appellant. The present plaintiff has brought the suit at the fag end of the execution proceeding of Title Execution Case No.68 of 1964 for recovery of possession in order to get benefit of the decree obtained by their predecessor 30 years back. As we have already stated that the plaintiff is not judgment-debtor and he has not filed application before the execution Court under Order XXI rule 99 of the Code of Civil Procedure claiming in good faith to be in possession of the property on his own account. In the instant suit i.e. a suit for declaration of title and recovery of khas possession admittedly the plaintiff is out of possession and the order of injunction is designed to obstruct the execution of decree, the subject matter of Execution Case No.68 of 1964 arising out of Title Suit No.64 of 1962. The provision of Order XXI rule 99 is of no assistance to the plaintiff as well as the present suit is not pending against both the parties to the previous suit so as to attract the said provision but the instant application for temporary injunction is simply designed to obstruct the execution of decree obtained 30 years back by the defendant in the instant suit for declaration of title and recovery of possession at the instance of the present plaintiff. .................... (Para 7) JUDGMENT MOHAMMAD FAZLUL KARIM-J: The appeal by leave is directed against the judgment and order dated the 8th day of November, 1998 passed by the High Court Division in Civil Revision No. 1697 of 1994 discharging the Rule affirming those dated 27.02.1994 passed by the Subordinate Judge, 1st Court Sylhet in Miscellaneous Appeal No.38 of 1990 allowing the appeal granting temporary injunction reversing those dated 08.03.1990 passed by the Senior Assistant Judge, Sadar, Sylhet in Title Suit No.241 of 1989 refusing plaintiff's prayer for temporary injunction. 2. The facts involved in case, in short, are that the plaintiff, Abdul Motlib, was in possession of the suit land by constructing homestead and residing therein with his family for the last 51/52 years on the basis of his jote right and by adverse possession. The defendant No.4 recently disclosed that Ishaque Ali, predecessor of defendant Nos.1 and 2 instituted Title Suit No.34 of 1962 against defendant Nos.4 and 5 and predecessor of defendant Nos.6-10 for declaration of title to the suit land and recovery of khas possession of the land and obtained a decree in respect of the suit land. The predecessor of the defendant No.1 put the decree of Title Suit No.34 of 1962. into execution in Title Execution Case No. 68 of 1964 and tried to evict the defendant Nos. 4-10 and the plaintiff therefrom. That immediate after filing of the suit, the plaintiff filed an application under Order XXXIX rule 1 of Code of Civil Procedure for temporary injunction restraining the defendant Nos. 1-3 from evicting the plaintiff from the suit land by putting the decree of Title Suit No. 34 of 1962 into execution. 3. The defendant Nos.l-2 contested the suit filing written statement contending inter-alia, that they instituted Title Suit No. 34 of 1962 for declaration of title and for recovery of khas possession and that suit 'was decreed. The defendants in Title 5uit No.34 of 1962 preferred Title Appeal No.26 of 1964 against the judgment and decree of the Title Suit No.34 of 1962 which was dismissed. The Title Execution Case No.68 of 1964 instituted by Ishaque Ali the predecessor of the defendants was still pending. Ishaque Ali, decree-holder of Title Suit No.34 of 1962 died on 21.02.1988 leaving as heirs Osman Ali and Goleza Khatun who sold their interest of the land of schedule II of the plaint to defendant No.2 by a registered kabala dated 09.11.1988 and in this way defendant Nos.1 and 2 were in possession of the land of schedule 11 of the plaint. The defendant No.2 purchased the land of 4 dags out of schedule 1 of the plaint from one Jamini Kumar Nath and Baikunta Nath by kabala dated 01.08.1969 who were tenants of the landlords Jago Chandra and others. The plaintiffs have no title and possession of the suit land and, as such, the prayer for temporary function should be reje