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2019 DIGILAW 226 (MP)

Bhahadur Singh v. Yash Chouhan

2019-03-13

PRAKASH SHRIVASTAVA

body2019
ORDER 1. Heard on the question of admission. 2. By this revision petition under section 115 of the CPC, the defendant has challenged the order of the trial Court dated 15.5.2018 rejecting the petitioner's application under order 7 rule 11 of the CPC. 3. Learned counsel appearing for the petitioner submits that the trial Court has committed an error in rejecting the said application. 4. Having heard the learned counsel for the petitioner, on the perusal of the record, it is noticed that the respondent has filed the suit for recovery of a sum of Rs. 52,000/- along with interest. The said suit has been filed on the basis of the agreement which was allegedly executed between the parties on 12.12.2016 in pursuance to which certain amount was received by the petitioner from the respondent. It has further been alleged that in pursuance to the said agreement, a part of the amount was returned by the petitioner to the respondent but the balance amount of Rs. 52,000/- though was agreed to be returned but was not returned. Hence, the prayer for return of the amount along with interest was made. 5. In the application under Order 7 rule 11 of the CPC, the petitioner had raised the plea that the suit under order 37 rule 1 and 2 of the CPC was not maintainable because the agreement was a sale agreement, therefore, the suit for specific performance of the contract ought to have been filed. 6. The trial Court has rightly examined the issue in proper perspective in the impugned order while coming to the conclusion that the respondent is not seeking the execution of the sale deed in pursuance to the agreement but is only seeking return of the amount as per the agreement. Hence, the suit under Order 37 rule 1 and 2 of the CPC is maintainable. The stand which has been taken by the trial Court does not suffer from any error. While passing the impugned order, the trial Court has neither committed any illegality nor exceeded its jurisdiction, therefore, no case for interference in revision petition under Section 115 of the CPC is made out. 7. Revision petition is accordingly dismissed.