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2018 DIGILAW 913 (HP)

Ashok Pal Sen v. Khub Ram

2018-05-16

VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. This application has been filed under Order 39 Rule 2A read with Section 151 of the Code of Civil Procedure (for short 'CPC') for taking action against respondents herein, i.e. Khub Ram and Gopal Singh Thakur, for willful contempt of the Court and disobedience of injunction order, dated 30th July, 2010, passed by this Court in OMP No. 13 of 2010 in Civil Suit No. 4 of 2007, on the ground that respondent No. 1-Khub Ram has executed agreement (s) to sell with respondent No. 2-Gopal Singh Thakur and one Subhash Thakur with respect to the suit land. 2. Respondents have contested the application by stating that there is no violation of the order passed by this Court on the part of the respondents and the agreement (s) to sell entered into between the parties is subject to final outcome of Civil Suit No. 4 of 2007. 3. Learned senior counsel for the applicant submits that as evident from application Ex. A-1 filed by Subhash Thakur, under Order 1 Rule 10 CPC for his impleadment as defendant in the Civil Suit, the said Subhash Thakur was claiming his right on the property as a transferee and also as claimed in term and condition No.3 of the agreement (s) to sell, Ex. A-2 and A-3, full and final amount of consideration has also been received by respondent-Khub Ram and, thus, the agreement (s) to sell amount (s) to alienation of the suit property in violation of the interim order passed by this Court. 4. Learned counsel for the respondents has reiterated that the suit property has neither been alienated nor its nature and possession has been altered and mere agreement to sell does not amount to transfer or alienation of the suit property. 5. On 8th January, 2010, following order was passed in OMP No. 13 of 2010: “Let reply to this application be filed by the defendants within next four weeks. In the meanwhile, the defendants are restrained from alienating, encumbering, transferring or changing the suit property in any manner whatsoever till further order.” 6. OMP No. 13 of 2010 was disposed of on 30th July, 2010 with following order: “The parties shall maintain status quo with respect to nature and possession as well as alienation of the suit property till the disposal of the suit. Application stands disposed of.” 7. OMP No. 13 of 2010 was disposed of on 30th July, 2010 with following order: “The parties shall maintain status quo with respect to nature and possession as well as alienation of the suit property till the disposal of the suit. Application stands disposed of.” 7. In Section 54 of the Transfer of Property Act, contract for sale of immovable property has been defined as a contract that a sale of such property shall take place on terms settled between the parties which does not, of itself, create any interest in or charge on the such property. Agreement (s) to sell, in present case, is/are nothing but contract (s) for sale. 8. Though, in terms and conditions No. 3 of the agreements, Ex. A-2 and A-3, receipt of Rs. 50 lacs, as a full and final sale consideration, has been stated, but, respondent No. 1-Khub Ram, while appearing as a witness in present proceedings, in his cross-examination, has categorically stated that the fact mentioned in the agreement to sell in portion 'A' to 'A' that he has received entire sale consideration amounting to Rs. 50 lacs is incorrect. Therefore, it is also doubtful as to whether any sale consideration has ever been paid and received between the parties to agreement (s) to sell or not. 9. Further, in term and condition No. 4 of the agreement (s), it has specifically been mentioned that sale deed of the property in question shall be executed and registered after decision of Civil Suit No. 4 of 2007. Term and condition No. 5 also provides default clause that on failure to execute and register the sale deed after the decision of the Civil Suit, referred to above, respondent-Khub Ram will be liable to pay double of the amount received by him. 10. So far as application Ex. A-1 filed by Subhash Thakur is concerned, there is nothing in the said application from which it can be construed that the suit property has been either alienated, transferred, encumbered or changed in any manner. Crux of the application is that as the fate of agreement to sell depends upon the outcome of Civil Suit No. 4 of 2007, applicant-Subhash has acquired interest in the suit land and thus, required to be impleaded as defendant for proper and effective adjudication of the suit. Crux of the application is that as the fate of agreement to sell depends upon the outcome of Civil Suit No. 4 of 2007, applicant-Subhash has acquired interest in the suit land and thus, required to be impleaded as defendant for proper and effective adjudication of the suit. Therefore, this application also does not establish any violation of order passed by this Court in any manner. 11. On the basis of material placed on record and also in view of the definition of contract for sale in Section 54 of the Transfer of Property Act and specific terms and conditions of the agreements, Ex. A-2 and A-3, it cannot be said that respondents have committed willful contempt of the Court or disobedience of injunction order, dated 30th July, 2010, passed by this Court as there is no legal alienation, encumbrance, transfer or change in the suit property, in any manner. 12. In view of above discussion, present application is dismissed. No order as to costs. 13. Record of this application be tagged with the case file of Civil Suit No. 4 of 2007.