MILIND Vs. AJAY

JUDGEMENT

(1.) Heard. ADMIT. By consent of learned counsel appearing for both the parties the matter is taken up for final hearing.

(2.) The appellant is aggrieved by refusal of grant of temporary injunction in the pending Special Civil Suit No.10 of 2014. The application was preferred under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of temporary injunction to restrain the defendant from selling, transferring, mortgaging or creating any third party interest in the suit property till the final decision of the suit.

(3.) It appears that the substantial amount in the sum of Rs.10.00 Lacs has been paid out of agreed consideration of Rs.19.00 Lacs as per agreement whereby the defendant was called upon to perform part of the contract and execute the sale deed upon payment of entire consideration amount. The plaintiff has apprehension that the defendant is likely to create third party interest so as to defeat the claim of the plaintiff in the pending suit. This apprehension of likelihood of creating thirty party interest itself sufficient in the accompanying facts and circumstances that there was an agreement to sell suit property existing which averred that consideration is in the sum of Rs.19.00 Lacs and substantial amount of Rs.10.00 Lacs was already paid. When such averments are made before the trial Court, the trial Court should have protected the property from changing its hands by the defendant pending disposal of the suit. The defendant could have been restrained from creating third party interest till trial Court decides the suit on merits. That being so, the impugned order needs modification.