L.D. VIRMANI Vs. SMT. CHANDRA KALRA

JUDGEMENT

(1.) This revision under Sec. 115 of the Civil Procedure Code has been filed by L.D. Virmani against the opposite party who was plaintiff in the original suit against the defendant and prospective purchaser against the order dated 24th June, 1998 in O.S. No. 127 of 1998. By the impugned order the trial Court stayed the order passed by it on 1st June, 1998.

(2.) The brief facts giving rise to the present revision are that Late Narendra Kalra the husband of Smt. Chandra Kalra, defendant No. 1 and father of defendant No. 2. Himanshu Kalra was known to one L.D. Virmani who is plaintiff in the suit. It is stated that in the life time of Kalra a sum of Rs. 8,50,000 was taken 38 dasti loan from the plaintiff on 27th Jan., 1998, Narendra Kalra by way of security issued nine cheques in favour of the plaintiff/revisionist totalling to Rs. 8,50,000 and requested the plaintiff not to encash the said cheques and to send them for encashment after 15th Feb., 1998. It is further stated that Narendra Kalra committed suicide on 30.1.98. The plaintiff/revisionist contacted the defendants and the defendants agreed to pay the amount and expressed his desire to mortgage the property No. 65/14 (633), Kamala Colony, Raipur, Deharadun but subsequently the defendants started delaying, therefore, the plaintiff filed suit No. 127 of 1998 for the decree of Rs.8,62,000 against the defendant along with pendante-lite and future interest at the rate of Rs. 18 per annum. It is stated that the plaintiff filed application 23-C-1 under Order XXXVIII, Rule 5 C.P.C. for attachment before the judgment and the property to be attached was the residential house of Raipur Road, Deharadun as well as three insurance policies. It is stated that the defendants appeared and filed an application 25-C-2 on 26th March, 1998 to the affect that they have no intention to sell the properties mentioned in the application for attachment, nor they have any intention to move out of the jurisdiction of the Civil Court. The Civil Judge before whom the suit was pending after hearing parties passed an order on 4th May, 1998, allowed the application of the plaintiff for attachment before judgment and directed the defendant to furnish security for the amount within 15 days, failing which the properties were ordered to be attached. It appears that the defendant did not comply with the order and did not appear before the Court, therefore, the order of attachment which was conditional is said to have become final and ultimately the order of attachment was passed on 28th May, 1998. It is stated that when the plaintiff came to know that the defendants have executed a sale deed in respect of Raipur Road in favour of one A.K. Verma for consideration of Rs. 14 lacs and that LIC policies have been encashed by the defendant, the plaintiff moved an application on 1.6.98 that the sale deed which was not been registered may not be registered. The Sub-Registrar, Dehradun be directed not to register the same. On 1.6.98, the Civil Judge directed Sub-Registrar, Dehradun not to register the sale deed and this order was served upon Sub-Registrar, Dehradun. It is further stated that A.K. Verma the prospective purchaser moved an application on 19.6.98 under Sec. 115 C.P.C. for quashing the order dated 1.6.98. This application was to be listed on 24.6.98 and the second application was also moved by A.K. Verma. The application was taken up by Link Officer when the Parent Court was in Mussorie from 23rd June, 1998 to 27th June, 1998, where he was holding the Court. It is stated that the Link Officer Sri S.K. Goyal passed an order on 24th June, 1998 staying the order dated 1st June, 1998 passed by the Civil Judge by which the Sub-Registrar was restrained to register the sale deed. This order is under challenge in the present revision.

(3.) Sri Rajesh Tandon appeared on behalf of the contesting respondents, Sri A.K. Verma only filed counter affidavit and submitted that revision is not maintainable, as the order is an interlocutary in nature and it does not come within the definition of the words "case decided." Mr. Tarun Verma has given a statement that he will file no rejoinder affidavit and is ready to argue the case on merit at the admission stage. Since other respondents who were contesting defendants in the original suit have not been served and nobody has filed appearance on their behalf, therefore, the revision could not be heard finally, however, a preliminary point was urged by the Counsel for the parties. Mr. Tarun Agrawal on the point of preliminary objection submitted that when the order is without jurisdiction the revision can be filed even though the order is interlocutary. His submission is that when there was an order of attachment passed on 4th May, 1998 under Order XXXVIII, Rule 5 C.P.C. and condition was imposed that if security is not furnished by the defendant, the order for attachment shall be passed and order of attachment was passed on 28th May, 1998, the defendant had no authority or right to execute the sale deed on 14th May, 1998. He has placed reliance on AIR 1961 Supreme Court 1747, specifically paragraphs 6, 7 and 8 of the judgment. His further submission is that the prospective purchaser had no right to apply for recall of the order or for suspension of the order, restraining the Sub-Registrar to register the sale deed as he was not a party to the suit, therefore, the Court had no jurisdiction to recall that order on the move of stranger to the suit.