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2023 DIGILAW 1597 (MAD)

V. Kavurajan v. K. N. Perumal (died)

2023-04-06

R.VIJAYAKUMAR

body2023
JUDGMENT : PRAYER: Civil Miscellaneous Appeal filed under Order 43, Rule 1 (r) of C.P.C, against the order made in I.A.No.249 of 2016 in O.S.No.59 of 2016, dated 09.02.2018 on the file of the Principal District and Sessions Judge, Virudhunagar District at Srivilliputhur. The present Civil Miscellaneous Appeal has been filed by the plaintiffs in a suit for specific performance challenging the order of dismissal of his application seeking interim injunction not to alienate the suit property pending suit. 2. The appellants herein had filed O.S.No.59 of 2016 on the file of the Principal District and Sessions Court, Virudhunagar District at Srivilliputhur, for the relief of specific performance of an agreement, dated 26.01.2008 and the cash receipt, dated 07.03.2008 said to have been executed by the defendants in the suit along with the suit. The plaintiffs had filed I.A.No.249 of 2016 seeking prayer for interim injunction as against the defendants not to alienate the property pending suit. In the said application, the plaintiffs had contended that the defendants had attempted to alienate the property through real estate brokers. 3. The defendants have filed a counter contending that the receipt of the amount is not towards sale consideration and the document was not executed as a sale agreement. The plaintiffs by playing fraud upon the defendants, managed to obtain the said sale agreement and the cash receipt. 4. The Trial Court without going into the issue whether the defendants are attempting to alienate the property or not, had considered the dispute and found that the plaintiffs have not made out a prima facie case for grant of interim injunction and dismissed the said application. Challenging the said order, the present appeal has been filed by the plaintiffs. 5. According to the learned counsel appearing for the plaintiffs, the property is alienated pending suit, and the third party interest would cause great prejudice to the plaintiffs. The said aspect was not at all considered by the trial Court while dismissing the application of the interim injunction. The learned counsel appearing for the appellants had further contended that nowhere the defendants have disputed the fact that they are attempting to alienate the property. Therefore, the allegation of the plaintiffs remains uncontroverted and the trial Court ought to have granted the prayer for interim injunction. 6. The learned counsel appearing for the appellants had further contended that nowhere the defendants have disputed the fact that they are attempting to alienate the property. Therefore, the allegation of the plaintiffs remains uncontroverted and the trial Court ought to have granted the prayer for interim injunction. 6. Per contra, the learned counsel appearing for the respondents/defendants had contended that unless the plaintiffs make out a prima facie case, the balance of convenience and irreparable injury would be caused in case of non-granting of interim order and the trial Court cannot grant interim injunction in favour of the plaintiffs. In the present case, the trial Court after considering the pleadings and submissions made on either side, has arrived at a finding that the plaintiffs have not established the prima facie case in their favour or balance of convenience in their favour. Therefore, there is no infirmity in the order passed by the trial Court. 7. I have carefully considered the submissions made by the learned counsel on either side. 8. The plaintiffs had filed a suit for specific performance relying upon an agreement, dated 26.01.2008 and the cash receipt, dated 07.03.2008. These two documents, though the defendants admitted the receipt of the amount, it is the contention of the defendants that it is the loan amount and it was not received towards sale consideration. He further contends that the said loan amount was also repaid and the sale agreement was executed only as security for the loan amount. 9. It is settled position of law that any alienation that is effected pending suit, is always subject to the result of the suit. Therefore, the subject the result of the said suit is hit by Section 52 of the Transfer of Property Act. Therefore, even without any order of interim injunction, any alienation made by the defendants would always be subject to the result of the specific performance suit. 10. The learned counsel appearing for the appellants had submitted that there was an order of interim injunction passed by this Court, on 20.03.2018 and the same was in force for the past five years. If the Civil Miscellaneous Appeal is disposed of without granting any interim order, the respondents are likely to alienate the property. 10. The learned counsel appearing for the appellants had submitted that there was an order of interim injunction passed by this Court, on 20.03.2018 and the same was in force for the past five years. If the Civil Miscellaneous Appeal is disposed of without granting any interim order, the respondents are likely to alienate the property. He further contended that in view of the time limit to dispose the Suit, the respondents may be injuncted from alienating the property till the disposal of the suit. However, the learned counsel appearing for the respondents had contended that the plaintiffs/appellants have not made out a prima facie case. 11. Considering the fact that there was an order of interim injunction for the past five years and the time limit is being fixed by this Court to dispose of the suit and also to avoid multiplicity of the proceedings, this court is inclined to direct the respondents to maintain status quo till the disposal of the suit. 12. In view of the above said facts, this Civil Miscellaneous Appeal is disposed of, with a direction to the trial Court to dispose of the suit in O.S.No.59 of 2016 on or before 31.12.2023. Both the parties are directed to co-operate for early disposal of the suit. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.