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2017 DIGILAW 46 (ALL)

Madhuri Saxena v. Pradeep Saxena

2017-01-05

PANKAJ MITHAL, SHASHI KANT

body2017
JUDGMENT Pankaj Mithal & Shashi Kant, JJ. Heard Sri Nikhil Kumar, learned counsel for the defendants-appellants and Sri C.P. Gupta, learned counsel for the respondent no.1. Respondent no.2 is only a pro-forma respondent. 2. The appeal challenges the order dated 17.01.2013 passed by the Additional District Judge and the order dated 03.08.2013 passed by the court of first instance in Original Suit No.445 of 2012, Pradeep Saxena Vs. Smt. Madhuri Saxena and others. 3. The Court below by the first order has decided the interim injunction application and by the subsequent order has rejected the application of the defendants-appellants for its modification moved on the ground that there was no consent or consensus for passing the previous order dated 17.01.2013. 4. It appears that the dispute in the suit is regarding House No.58 (present no.185) situate in Mohalla Panchkuiya, Jhansi. The aforesaid house was the property of late Prithvi Nath Saxena, predecessor in interest of the parties. 5. It is alleged that the deceased Prithvi Nath Saxena had left behind a Will, under which, the aforesaid property was bequeathed to the defendants-appellants. The plaintiff-respondent as such instituted the above suit for injunction and later got it amended so as to seek cancellation of the Will. 6. The court of first instance by the impugned order dated 17.01.2013 opined that the rights of the defendants-appellants, if any, in the property would be finally adjudicated in the suit and no final conclusion with regard to the ownership and title of the parties can be drawn on the basis of mutation in the records of the Nagar Palika but as during the course of argument, parties have arrived at a consensus that they would not transfer the property, the interim injunction application stands disposed of. It means that none of the parties would transfer or create any third party rights in the suit property. 7. The appellants contend that no such consensus was ever arrived between the parties during the course of arguments and that they have immediately filed an affidavit to this effect but no notice of it was taken by the court. 8. He filed First Appeal from Order No.1024 of 2013 challenging the order dated 17.01.2013. 7. The appellants contend that no such consensus was ever arrived between the parties during the course of arguments and that they have immediately filed an affidavit to this effect but no notice of it was taken by the court. 8. He filed First Appeal from Order No.1024 of 2013 challenging the order dated 17.01.2013. The said appeal was disposed of on 08.05.2013 with the directions that the defendants-appellants may move appropriate application before the court concerned if no consent was given and the same shall be considered on its own merits. 9. In pursuance thereof, the application of the defendants-appellants has been rejected by the order dated 03.08.2013 and the court below has opined that whatever facts have been stated in the order dated 17.01.2013 are true and correct and the same is not liable to be recalled or modified in any manner. 10. It may be noted that the order dated 17.02.2013 was earlier impugned by the defendants-appellants by filing First Appeal from Order and the same was disposed of without disturbing the same. 11. In view of the earlier First Appeal from Order, the defendants-appellants cannot be permitted to challenge the same order once again by means of this appeal. 12. The order dated 03.08.2013 is not appealable under Order 43 Rule 1(r) of CPC is as much as it not an order rejecting an injunction application. 13. In view of the above, the defendants-appellants can not successfully challenge any of the impugned orders. 14. Notwithstanding the above, as the property in question is under litigation and is subject to the decision of the suit pending between the parties, it is tirite to mention in view of Section 52 of the Transfer of Property Act, none of the parties to the suit are entitled to transfer or alienate the said property without the leave of the court. 15. In view of the above, irrespective of the fact that there was any consensus in passing the order dated 17.01.2013, the parties are not free to transfer or alienate the property without permission of the court. 16. Accordingly, the appeal is disposed of and it is provided that none of the parties will create any third party rights in the suit property without obtaining the leave of the court as contemplated by Section 52 of the Transfer of Property Act. 17. 16. Accordingly, the appeal is disposed of and it is provided that none of the parties will create any third party rights in the suit property without obtaining the leave of the court as contemplated by Section 52 of the Transfer of Property Act. 17. Since, the suit is pending since 2012, it is further provided that the Court below will proceed and decide the same expeditiously by curtailing all adjournments and fixing short dates. If any adjournment becomes necessary, it shall not be allowed without imposition of cost of Rs.500/- per adjournment upon either of the parties.