(1.) THE petitioner is aggrieved by an order dated 27th February, 2008 whereby his application for modification of an interim order dated 21st august, 1995 in Suit No. 1910/95 (original no.) was dismissed by the learned ADJ.
(2.) A perusal of order dated 21st August, 1995 would show that while granting interim injunction this Court, where suit was pending at relevant time, observed that the plaintiff had made out a prima facie case so defendants were restrained from creating any charge/encumbrance/parting with possession of any of the portion of the suit property. The petitioners contention is that at the time when this order was passed, he was not a party to the suit. He became a party to the suit subsequently. The interim injunction granted before his becoming party to the suit would not be applicable to him. This should have been clarified by ADJ where the suit was pending now. The petitioner contended that he had filed another suit for mandatory and perpetual injunction and the suit was decided in his favour by the Court of ADJ vide a judgment dated 28th october, 2003. However, the learned ADJ observed that in view of pendency of suit no. 1910/1995, the judgment and decree passed in the suit shall have effect, subject to the orders, if any, in suit no. 1910/1995. If this clarification is issued, he would be able to execute the decree.
(3.) EVEN if it is believed when suit no. 1910/1995 was filed, the petitioner was not made a party, but the petitioner became a party to the suit subsequently and order would be applicable on him. The interim order was passed ex parte by the Court on 21st August, 1995. The petitioner could have asked the court concerned to pass a final order after hearing the parties and could also have made an application under Order 39 Rule 4 CPC for vacating the order. The petitioner did not choose either to make an application under Order 39 Rule 4 for vacating the order or to press the Court for passing an order on merits. This ex parte interim order seems to have been confirmed by the Court later on. After 13 years, petitioner cannot seek modification of the order when the suit is pending and corpus of the suit has to be kept intact by all the parties to the suit. I find that the Trial Court rightly dismissed the application. The petition has no force and is hereby dismissed.