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1985 DIGILAW 304 (PAT)

Raja Ram Thakur v. Joseph Netal

1985-10-15

P.S.MISHRA

body1985
JUDGMENT : Since a learned argument has been advanced in support of the application under ORDER :39 Rule 1 of the Code of Civil Procedure, I propose to deal with the contention with some care. 2. There is no dispute to the fact that the appellant was a mortgagee in respect of the suit property and the respondents were mortgagors, Respondent nos. 1 and 2 had executed a deed of mortgage on 3.7.70 in favour of the appellant. Before, however, the said mortgage statutorily stood determined it is stated by the learned Counsel for the appellant, that respondent no. 1 for himself and on behalf of other respondents executed a contract for sale in favour of the appellant. The respondents, however, failed to carry out their part of the contract and accordingly on 6.5.1977 the appellant filed a suit for specific performance of the contract. 3. Mr. Dwivedi, learned counsel for the appellant has submitted that since the mortgage money was kept in amount for execution of the contract for sale and another sum of Rs.6,000/- was paid by the appellant to the respondent no. 1 on the execution of contract for sale, the appellant's possession as mortgagee stood transferred as his possession in part performance of the contract. He has submitted that the Court below in its JUDGMENT : has found that a written agreement has been duly executed by the respondent no. 1 in favour of the appellant and the appellant had paid a sum of Rs.6,000/- to the respondent no. 1 and the execution of the contract for sale is not in doubt. He has submitted that the appellant has been non-suited on the ground that the agreement was executed by respondent no. 1, who was not competent to act as representative of the other-Co-sharers and thus no alienation of the property could be made by him on behalf of other respondents. 4. Before I advert to examine the correctness of the contentions raised by Mr. Dwivedi, I may also make a note of another fact namely the fact that under the Money Lenders Act the mortgage stood redeemed on 3.7.77 and ORDER :bas already been passed by the competent authority under section 12 of the Money Lenders Act to deliver possession of the mortgaged property to the mortgagor (respondents). 5. The sheet-anchor of the submissions of Mr. 5. The sheet-anchor of the submissions of Mr. Dwivedi is section 53-A of the Transfer of property Act (hereinafter referred to as the Act), which states that where any person contracts to transfer for consideration any immoveable property by writing, signed by him or on his behalf from which the terms necessary to constitute the transfer can be (sic) accordance with reasonable certainty and the transferee has, in part performance of the contract taken possession of the property or any part therefore, or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract and willing to perform his part of the contract, the transferor shall be debarred from enforcing against the transferee any right in respect of the properties of which the transferee has taken or continued in possession. 6. It is not in doubt that the appellant was in possession on the date of the execution of the contract for sale i.e. 28.11.1976 and if the terms of the contract show that the appellant has been acknowledged in possession of the land in dispute, under the said contract, he has been in possession as contemplated under section 53-A of the Act. 7. Learned Subordinate Judge has, however, found the contract for sale un-executable and no decree for specific performance of contract has been granted to the appellant. He has appealed on the question whether he should be granted such a decree or not. 8. Section 16 of the Specific Relief Act makes certain special pleadings and proof there of necessary in case of specific performance of contract and in the absence of such pleadings and proof no decree of specific performance of contract can be granted, even if the requirement of Section 16 of the specific performance be fulfilled. Section 20 thereof gives a special jurisdiction to the Court saying that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such a relief merely because it is lawful to do, but the discretion of the Court is not arbitrary but sound and reasonable, guided by Judicial principles and capable of correction by a Court of Appeal. 9. 9. In the year 1975 the Bihar Money Lenders Act introduced a special provision of 7 year's period for subsistence of a mortgage and clearly spelled out that after the expiry of the period of 7 years, the mortgagee must redeem to the mortgagors the possession of the mortgaged property, In the instant case after the expiry of the period of 7 years, the competent authority has already passed an ORDER :under section 12 of the Money Lenders Act for delivery of the mortgaged property in favour of the mortgagors. The appellant has contested the proceeding up to this court and has tried to get an ORDER :of stay of delivery of possession in favour of the mortgagors but even stay has been denied to him by, this Court. He has now chosen to seak remedy under ORDER :39 Rule 1 of the Code of Civil Procedure invoking the Court's jurisdiction to stay the ORDER :of delivery of possession of the property in favour of the mortgagors by the competent authority under section 12 of the Money Lenders Act. 10. ORDER :39 of the Code of Civil Procedure speaks for restraining it party to the suit or proceeding, and not a Court or authority, which exercises its jurisdiction in accordance with law. No ORDER :of injunction upon a Court of competent authority can be issued under ORDER :39 of the Code of Civil Procedure as the ORDER :of injunction is always directed against a party to the suit or proceeding. In cases, where, however, the ends of justice so warrant exercising its inherent jurisdiction the Civil Court including the Court of Appeal and the High Court have issued injunction basing its ORDER :in such a manner that the restrained party may not bring the proceeding in a court of law in execution of the decree or before any authority under the statute. But the Court exercises its inherent jurisdiction where the ends of justice so demands. 11. I have no manner of doubt that the mortgagee (appellant) got the contract for sale executed on 28.1.76 by respondent no. 1 alone although the mortgage deed be had got executed on 3.7.70 in respect of the same property by respondents no. But the Court exercises its inherent jurisdiction where the ends of justice so demands. 11. I have no manner of doubt that the mortgagee (appellant) got the contract for sale executed on 28.1.76 by respondent no. 1 alone although the mortgage deed be had got executed on 3.7.70 in respect of the same property by respondents no. 1 and 2 both only with a view to ensure his possession and to secure the mortgage amount, which, in view of the statutory provisions of Money Lenders Act as aforementioned, was redeemed and lost on 3.7.1977. 12. Since the Court below has recorded a finding that respondent no. 1 has executed a written contract for sale, I do not propose to go behind the said finding at this state. But that alone will not entitle the appellant to defeat the statutory right in favour of other respondents, who are equally interested in the subject matter of the dispute. 13. On the facts and circumstances of the case, I am satisfied that it is not a fit case for grant of injuction in favour of the appellant. The statute must be allowed to have full play. Since the mortgage has already been redeemed and an ORDER :has been passed in favour of the respondents under section 12 of the Money Lender's Act, the same must be given effect to. If the court is satisfied after hearing the parties that the appellant is entitled to a decree for specific performance, it may grant equitable relief to the appellant to compensate him for the losses, which he may suffer. In any even the right of the appellant can be protected during the pendency of the appeal and merely because the injunction is refused, it may not affect his other rights. 14. The application in question is accordingly disposed of. Application accordingly disposed of.