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Sarat Chandra Panda Vs. Hari Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 434 of 1982
Judge
Reported inAIR1983Ori196
ActsSpecific Relief Act, 1963 - Sections 36
AppellantSarat Chandra Panda
RespondentHari Das and ors.
Appellant AdvocateS. Kr. Mohanty, Adv.
Respondent AdvocateR. Ch. Mohanty and ;Ramakanta Mohanty, Advs.
DispositionAppeal dismissed
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3,700/- out of the consideration money was paid before the sub-registrar and that fact has been duly endorsed on the title deed. it is a well-accepted rule that every decree should be permitted to be executed. the appeal must, therefore, fail and iaccordingly dismiss it, but without costs......for injunctionagainst the respondents from proceeding with execution of the decree obtained in title suit no. 33 of 1978, in e. p.no. 43 of 1981. 2. the appellant as plaintiff has, filed title suit no. 102 of 1982 on the allegation that he purchased the disputed property by a registered sale deed dated 30-12-1980 for a consideration of rupees 10,000/- from hari das and was put into possession. rs. 3,700/- out of the consideration money was paid before the sub-registrar and that fact has been duly endorsed on the title deed. balance of rs. 6,300/- was paid to one narasimha mohapatra under instructions of hari das to be adjusted towards litigation expenses and other charges incurred by narasimha on behalf of hari das. hari das, the admitted owner, being a leper was under the care of.....
Judgment:

R.N. Misra, C.J.

1. This appeal underOrder 43. Rule 1 (r) of the; CivilP. C. is directed against the order, of thelearned Subordinate Judge of Berhampur rejecting 9 prayer for injunctionagainst the respondents from proceeding with execution of the decree obtained in Title Suit No. 33 of 1978, in E. P.No. 43 of 1981.

2. The appellant as Plaintiff has, filed Title Suit No. 102 of 1982 on the allegation that he purchased the disputed property by a registered sale deed dated 30-12-1980 for a consideration of Rupees 10,000/- from Hari Das and was put into possession. Rs. 3,700/- out of the consideration money was paid before the Sub-Registrar and that fact has been duly endorsed on the title deed. Balance of Rs. 6,300/- was paid to one Narasimha Mohapatra under instructions of Hari Das to be adjusted towards litigation expenses and other charges incurred by Narasimha on behalf of Hari Das. Hari Das, the admitted owner, being a leper was under the care of his maternal uncle Gobinda Mohapatra, the third defendant. When the attack of leprosy became virulent, the maternal uncle forcibly drove Hari Das out of the house. The third defendant taking advantage of the situation set up his own son Radhanath (the second defendant) as adopted son of Hari Das with a view to grabbing the properties which the leper owned. In respect of the disputed property a proceeding under Section 145 of the Cri. P. C. was taken which terminated against the plaintiffs of Title Suit No. 33 of 1978, They, therefore, instituted the Title Suit No. 33 of 1978 claiming adoption in favour of plaintiff No. 1 and impleaded defendants 1 to 4 who had claimed tenancy rights and Hari Das as defendant. No. 5 and the present plaintiff's transferor Narasimha Mohapatra as defendant No. 6. The said suit was ultimately decreed and a first appeal has been carried before this Court which is pending. The decree was put into execution. The present plaintiff filed the Title. Suit No. 102 of 1982 on the allegation that he had purchased the property during the pendency of the previous suit from Hari Das and since he was not a party to the litigation, the decree would not foe binding on him; if execution is allowed to proceed and the present plaintiff is--dispossessed, irreparable loss would be caused to him.

3. The trial court looked into these allegations and did not agree to exercise his discretion in favour of the appellant. The petition for injunction was thus rejected and that has led to the filing of this appeal.

4. By the decree in the earlier litigation of 1978, title of Hari Das and Radhahath as his adopted son has been decreed. In fact, by compromise, defendant No. 5. Hari Das had accepted the claim of plaintiff No. 1. The purchase of the present plaintiff is during the pendency of the earlier suit. In case he succeeds in the litigation, his purchase may be upheld and at the most it would be adjusted against Hari's share. I do not express any opinion about it. The question for consideration at present is whether there should be any injunction against execution. The decree which is being executed is of the court of the Subordinate Judge, Berhampur and the execution case is also pending in the same court. In the new suit filed in the same court of the Subordinate Judge, the present appellant has asked the defendants to be restrained from proceeding with the execution case. Examined from any angle, in my opinion there is no justification to grant any injunction. The plaintiff claims as a purchaser from Hari. If he ultimately succeeds, he would be entitled to recover possession. The property was under attachment in a proceeding under Section 145 of the Cri. P. C. at the time of alleged sale in favour of the plaintiff. Delivery of possession could not have been taken. Under the provisions of the Specific Relief Act, a judicial proceeding is not to be stayed pending the institution of a suit unless there be -necessity for it with a view to preventing multiplicity of proceedings. Ordinarily, proceedings are not to be stayed by injunction unless the court where the proceedings are to be stayed is subordinate to the court from which injunction is sought. It is a well-accepted rule that every decree should be permitted to be executed. Keeping these aspects in view. I am inclined to agree with the learned Trial Judge that no case for grant of any injunction has been made out.

The appeal must, therefore, fail and Iaccordingly dismiss it, but without costs.


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