COURT OP CHHATT'SOARH AT iaie Bench ; Hon'bie Shri DIIJD Raosaheb Dsshmukh. J. sc.ApoeaiNo.41/2008 ABD&iiant PIaintif? Gambhirnia! Jain. aaed about 52 years, Son of Ratan Lal resldent of Viliage Kohka, Tehsil Dongargaon, District Rajnandgaon (C.G.) 'S-^.ffi^fs Defendants Dev Narain, Son of Late Laxman Prasad Tiwari, age 65 years, residem of La' Baag, Mahendra Ma.gar Colonv Road, Rajnandgaon (C.G.i •Shuvneshwar Prasad, Son of Late Laxman Prasad, age 51 years. Chandrika Prasad. Son of Late Laxman Prasad Tivvari, age SSyears, Respondent No.2 & 3 residents of Viliage K.otiKa, fehS!i uongargaon, District Rajnandgaon (C.G.) Gita Bai, wife of Laxman Prasad Tiwari, aged 56 years, resident of Village Diwanmaind' / Tehsi! Dongargaon, District Rajnandgaon State of Chhattfegarh, Through Coilector Rainandaaon. Aotslicatlon under Order XLIIi Ruia 1 I'} offhe Corie of Civil .^w' JVT ^ i^G^ ^*:; 'a^'L 3 ^ri 3 1<^J ^fa ^si^ & icvif^^ :t ^\Sast ^ •i E ^ ^L;v3 3 <^fr A ^ S S ^a.^ S ^; ; 1&* ^^T*iu;r'^.3 ^B» n*? 9 ^fl?' 3^2;] Procei 1908 Prsseni : - Appeliant/plaint'ff by Shri Pramod Verma, Senior Advocate with Shri Sumit Verma and Shri Raghavendra Verrna. Shri R.N.Jha, counsei for respondent No.1 Shri P.R.Patankar, P.L. ror respondent No.S/State. None appears for other respondents. {Psssed on this 27"' dav i3 ;s"fA •^f^f^^^ iu^E, ^yy^j -a- The appetiant has preferred thls appeai against the order dated 7.4.2008 passed by the 1 Additional District Judge, Rajnandgaon in Clvii suit No. 9-A/2007 whereby the application under Section 94 of the Code of Civl! Procedure (henceforth 'the Code') forgrant oftemporsry jnjunction i" favour ofthe appe!!ant?p!aintiff was dismissed. 2. !t is not In dlspute that Dev Narayan, Bhuneshwar Prasad, Chandrika Prasad and Gita Bai are the chi'dren of deceased Laxman Prasad Tiwari. Dev Naravan Tiwari had instituted Civii Suit No, 296- A/1997 bsfore the Civil Judgs Ciass-'i, Rajnandgaon for possession of the suit propsrty against the appsHant hersln and 4 others. Ths suif was decreedln favour of Dev Narayan by the trial Court. The said judgment ft:~ir'1 f^i3;''r.:sa hs-i.'lns- h^^n-nrtf nrslv ^ffirr^sH ir, Flr'^f AnrtA?s| '/(^il-/it Ann?s?il hJ<' C-l; j^ ^tf^^i/i ^G? ^ ;iSV si ^^ L^'^'!S?J i 2 i\^^ ^! IS^ dl lla ^ 3 =^lari i3 ^ * 3? T,?L /r^^r^ft^^ii ^'\t^3 yi i ^~^.^^f^e/i! i ^^' • 5A/2005) but aiso in Second Appea! No. 250/2008 by the High Court of Chhattisgarh vide.judgment dated 26.09.2006 attained finallty snd was put te execution. 't is not disputed in thls appea! that the appeHant/plaintiff had resisted the execution by filing an application under Section 47 of the Code which was nlso dismissed. It is a!so not in disDute that in C'vli Suit No. 296-A/1997, ihs appellant'piajntiff had put up a cass of being in posssssion of the suit propsrty on the basis of an unregistsred sale deed dated 10.5.1890. 3. The appeiiant/plaintiff instltuted Civi! Suit No. 9A/2007 for deciaration that the decree in Civi! Suit No.296-A/1997 having been obtained by fraud was not executable. !n the alternative, it was prayed ihat a decree for partiilon of the properiy mentloned in Schedute-A be passed and the land in possession of the appeilant/plaintiff be ailotted to s- the share of Bhuneshwar Prasad Tiwari from whom the appeliant/plaintiff claimed possession through an unregistered document dated 10.05.1990. 4. !n Civil Suit No. 9-A/2007, the appeliant/plaintiff moved an application under Sectlon 94 ofthe Code for issuance of injunction against Dev Narayan Tiwari to the effect that the appellant/plaintiff should not be dispossessed in execution of the judgment and decree passed in Civil Suit No. 296-.A/1997. The iearned 1s Additional District Judge has, by speaking order, dismissed the said appiication. 5. After hearing the learned counse! for the appeilant, ! am of the considered opinion that this appeat has no merit. The appellant'plaintiff had contested the eariier suit (Cjv!l SuiS No.296-A/1997) upto the stage of sscond appeai. The judgment and decree passed in Civii Suit No. 296- A/1997 has attained finaiity. No materia! was placed by . the appe.liant'plaintiff before the ieamed 1 Additjonal District Judge, Rajnandgaon to show that the saidjudgment and decree was obtained by fraud. It is aiso pertinent to note that the appeilant'plaintiff did not derive any titie over the land in question by virtue of an unregistered sale deed dated 10.05.1990. Undisputedly, the application under Secfion 47 of the Code filed by the appellant/piaintiff during execution of the judgment and decree passed in Civil Suit No.296-A/1997 has also been dismissed. !n tnis view of fhe rnatter, fhe iearned 1 Additional District Judge, Rajnandgaon was whoily justified in dismissing the appiication under Section 94 of the Code. No iiiegaiity is seen in the impugned order. resu!t, he appeal being devoid of merit is dismissed at the stage of admission. Dilip Raosaheb Deshmukh Judge (tivnf