Dilip Kumar Seth, J.@mdashThis 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. 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 fraud 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.
2. 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 CPC and not by way of a separate suit.
According to him, the respondent herein is a party 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 CPC specifying the details of fraud and 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 CPC 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 CPC applies in full force. He also relied on
the decision in Shreenath and Another Vs. Rajesh and Others, in support of his contention.
3. 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 u/s 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 prima 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.
4. We have heard the learned Counsel for the respective parties at length.
5. Admittedly, the application under Order 21 Rule 97 of the CPC has been filed. Learned Counsel for the appellant submits that the respondent
herein has been made party to the said proceeding. He also relies on certain document to show that some proceedings have been initiated under
the Code of Criminal Procedure against the plaintiff and her husband. He also contends that if the plaintiff/wife is not a party to the proceeding
under Order 21 Rule 97 of the CPC in view of the appeal having been filed and the wife having claimed independent right, he craves leave to add
the plaintiff/wife as party to the proceeding under Order 21 Rule 97 of the Code of Civil Procedure.
6. At this stage. Mr. Bhattacharjee, learned Counsel for the respondent, had contended that in case the Court finds otherwise, in that event, the
respondent may be permitted to contest the proceeding under Order 21 Rule 97 of the CPC so as to establish her right.
7. We have examined the pleadings in the plaint. Assuming that a separate suit can be maintained on the ground of fraud, then also we do not find
sufficient pleadings as contemplated under Order 6 Rule 4 of the Code of Civil Procedure. The ground taken does not show that such prima facie
case of fraud based on an independent right is made out. It is not a simple case for grant of injunction in an ordinary suit where prima facie case is
sufficient. In the present case, it is to be examined from a different angle, viz in the light of the provisions contained in Order 21 Rule 101 of the
Code of Civil Procedure. These provisions specifically bar filing of a separate suit. When the statute creates a bar, the same cannot be avoided by
reason of pleading fraud, in view of the wide expression embodied in the said provisions. Rule 101 of Order 21 of the CPC in express language
makes it clear that all disputes or all questions including the question relating to right, title or interest in property arising between the parties to a
proceeding on an application under Rule 97 or Rule 99 relevant to the adjudication of the application shall be determined by the Court dealing with
the application and not by a separate suit and for this purpose the Court shall, notwithstanding anything to the contrary contained in any other law
for the time being in force, be deemed to have jurisdiction to decide such question. Thus the Legislature had intended to create extensive
jurisdiction in respect of such questions so as to avoid filing of a separate suit and delay the procedure for execution. The Legislature had even
gone to the extent of conferring jurisdiction on the Executing Court, if it is necessary for the purpose of such decision, in order to avoid decision in
a separate suit. The parties that have been referred to are the parties to the application under Rule 97. It necessarily includes the parties who may
not have been parties to the suit Whoever might resist the execution of the decree, he may be a party to such proceeding, or may be a stranger, but
still then the Legislature had intended that the dispute between the decree-holder and any person; including a stranger resisting execution is to be
decided in the said proceeding. In other words, the Executing Court is clothed with the power to examine finally, whether the decree is executable
against the person resisting execution or the executability of the decree. In view of such situation, the Rule 98 and Rule 101 have been made
appealable under Rule 103 thereof. Thus, the intention of the Legislature is clear and unambiguous. The expression ""all questions"" which was
emphasized by the expression ""including the question relating to right, title or interest in the property"" makes the same inclusive and not exhaustive.
Thus, this includes the question of fraud within the scope and ambit of such proceeding. Even if it is contended that the fraud is independent and
that the person sought to be affected is not bound by the decree or that the decree has been obtained fraudulently without making him a party, are
also the questions, which can be gone into within the scope and ambit of Rule 101.
8. Our above observation may find support from the decision of the Apex Court in Shreenath vs. Rajesh (supra). We may beneficially refer to
paragraphs 10 and 11 of the said decision. In this decision the Apex Court had referred to the decision In Noorduddin Vs. Dr K.L. Anand, and
Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, . where similar view was taken.
9. Having regard to the said decisions, it appears that the Apex Court had recognized the exhaustiveness of the said provision to include all
questions within the scope and ambit of the provisions under Order 21 Rule 97 or Rule 99 of the CPC as the case may be. without being tried
through a separate suit
10. Reference to Section 44 of the Evidence Act by Mr. Bhattacharya is misconceived and would be of no assistance to him. Inasmuch as.
Section 44 deals with the extent of admissibility of Judgment of Courts of justice when relevant, particularly, those referred to in Sections 40. 41
and 42 of the Evidence Act. Court is supposed to take cognizance of such judgments referred to in the said three Sections. But such judgments
can be resisted in relation to or in respect of its relevance on the ground of fraud or collusion or incompetence of the Court, as the case may be.
Section 44 does not confer any independent right of initiating a proceeding. It is a matter of evidence, which can be done by proving those
judgments to have been obtained from a Court not competent to deliver the judgment or that such judgment was obtained by fraud or collusion. It
is a procedure for admissibility of an evidence and has nothing to do with filing of a suit In any event the question is of no importance when it is
considered in the context of a proceeding under Order 21 Rules 97. 99 read with Section 101 of Code of Civil Procedure, which permits
determination of all questions between the parties as discussed above. However, the aid of Section 44 of Evidence Act can be taken even in a
proceeding contemplated under Order 21 Rules 97 and 99.
11. For all these reasons, we find that the order appealed against could not be sustained in view of the fact that no prima facie case could be said
to have been made out since the suit appears to be hit by a statutory bar provided in Order 21 Rule 101 of Code of Civil Procedure. Therefore,
the order of injunction cannot be sustained.
12. In the result, the appeal is allowed. The order appealed against is hereby set aside.
13. Injunction granted by the learned Trial Court stands vacated. The execution proceeding may proceed. In case the respondent is not a party to
the said proceeding, the appellant shall include the respondent as a party therein. In any event, if the respondent claims any right to resist the
decree, she shall be added as a party to the execution proceeding. The application under Order 21 Rule 97 shall be decided in accordance with
law after giving opportunity to the respondent, who shall be at liberty to take all points, as may be advised. The observations made herein are all
tentative for the purpose of deciding this appeal. The learned Executing Court shall be free to decide all questions in accordance with law and
according to its own wisdom and discretion, without being influenced by any observation made in this order.
14. There will be no order as to costs.
15. This Court expects that the Executing Court shall decide the question indicated above within a period of six months from date.
16. Learned Counsel for the appellant submits that the order granting police help has already been allowed. Having regard to the peculiar feature
of this case, the said order shall be given effect to only after giving opportunity of hearing to the respondent herein in terms of this order as directed
above. Let the Lower Court Records be sent down to the learned Court below within fortnight from date.
Joytosh Banerjee, J.
I agree.