BHISHAM SAWHNEY Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal against the order of the learned Single Judge dated July 7,1993 whereby IA No.4262 of 1990 underorder 39 rule4CPC filed in Suit No2011 of 1986 was rejected on the ground that the appellants, who had moved the application, were not parties in the suit.

(2.) The brief facts giving rise to this appeal are as under: State Bank of India, respondent No.1 /plaintiff filed a suit in respect of loans and facilities lent and advanced to respondent 2/ defendant I . Respondents 3 and 4/ defendants.2 and 3 are the guarantors in respect of loans sanctioned and advanced by respondents 1 and 2. Respondents 5 to 10, who are defendants 4 to 9, in the suit are the legal heirs of late Shri Ram Gopal who was also a guarantor in respect of the various loans advanced by the respondent No. 1 to respondent No.2. In the suit, the following reliefs,inter alia, are claimed against the respondent 2 to. 10: (a) This Hon'ble court be pleased to pass a money decree against defendant No. 1 to 9 jointh and severally in the sum of Rs. 27,23,886.65 Bhisham Sawhney and another Vs. U. O. I. & Others 319 together with further interest at the rate of 17.5% p.a. with quarterly rests from 13.5.1986 or such enhanced rates as per Reserve Bank of India directives; b) Adeclaration that the immovable properties more particularly described in Schedules lA and IB to the plaint are validly mortgaged/charged for the due repayment for the decree to the passed in favour of the plaintiff. e) A decree for the sale of the mortgaged properties under Order 34 Rule 4 Civil Procedure Code in Appendix D to the Civil Procedure Code and aplication of the sale proceeds towards satisfaction of the decree to be passed herein. In the suit, respondent 1/plaintiff filed an application, being IA No.829 of 1987, praying, inter alia, that property bearing No.48-A, DDA Shed, Okhla Industrial Area, Phase II, New Delhi be attached under Order 38 rule 5 Civil Procedure Code . In this application the learned singleJudge on February 10,1987 passed an ex parte interim order restraining defendants in the suit from transferring or alienating the said property. This led to the moving of an application (IA No.4262 of 1990) by the appellants under Order 39 rule 4 read with Section 151 Civil Procedure Code . with the allegations that the aforesaid property no.48A,DDA Shed Okhla Industrial Area, Phase II, New Delhi was in possession of Libra Electronics Pvt.Ltd. which is a company owned by the family members of the trustees of the Sawhneys Trust and/or is the sister concern of the applicant firm namely Sawhney Enterprises; that defendants 1 and 2 agreed to sell the said property by agreement to sell dated September 3,1986 for a total consideration of Rs.4,25,000.00 and substantial part of the sale consideration was paid; that in part performance of the agreement to sell defendants 1 and 2 handed over the vacant physical possession of the property to the appellants and that the appellants are in possession of the property as owners thereof and/or in their own independent right, being beneficial owner thereof. The prayer of the appellants in the application was that IA No.829of 1987 be dismissed and the Interim order dated February 10,1987 be vacated. The learned SingleJudge by the order dated July 7,1993 rejected the application on the ground that the application was signed by Mr.Rajeev K.Nanda on behalf of S/Shri Shri Bhisham Sawhney and P.S.Sethi who were not parties in the suit. It is this order which has been impugned Before us in the present appeal.

(3.) We have heard the learned counsel for the parties on both sides and have gone through the record. It is not in dispute that the appellants were not parties in the suit and the present appeal has been filed by them without the leave of the court. When this was brought to the notice of the learned counsel for the appellants he submitted that since the interim order dated February 10,1987 prejudicially affects the appellants, they could file the appeal even without the leave of the court, we are afraid that learned counsel for the appellant is not right in his submission.