LAWS(MPH)-2000-3-67

GEETA DEVI NAPIT Vs. KRISHNA GUPTA

Decided On March 13, 2000
GEETA DEVI NAPIT Appellant
V/S
KRISHNA GUPTA Respondents

JUDGEMENT

(1.) THIS is plaintiff's appeal under Order 43 Rule 1 (a) of the Code of Civil Procedure against the order dated 27-11-1997 passed by First Additional District Judge, Ambikapur (Surguja) whereby the Court below has returned the plaint to the appellant for its presentation to the Court having competent territorial jurisdiction.

(2.) THE appellant filed a suit against the respondents in the Court of District Judge, Surguja, for specific performance of contract in respect of property situate at Bhopal. The appellant, inter alia, pleaded that her husband was working as Sub Engineer in the Department of Tribal and Social Welfare, Surguja. The respondent No. 2 was also posted as Sub Divisional Officer (Construction) in the same Department. The husband of the appellant was working under him. The appellant No. 2 wanted economic assistance from the husband of the appellant for the education of the respondent, No. 3. Looking of the family terms, the appellant agreed to advance a loan of Rs. 1,30,000/- to the respondent No. 2 on condition that the suit-property detailed in Schedule-A and Schedule-B of the plaint, belonging to respondent Nos. 1 and 3 respectively, be mortgaged as a security for the loan. Pursuant to the agreement, an advance of Rs. 60,000/- was made and to the respondent No. 2 and the remaining amount of Rs. 70,000/- was to be paid at the time of executing of a Deed of Mortgage by Conditional Sale.

(3.) ACCORDINGLY, the agreement, Ex. P-3 was executed and signed by the respondent No. 1 in the capacity of Holder of Power of Attorney of the respondent No. 2 in favour of the appellant on 28-8-1979. It was agreed that the registered Deed of Mortgage shall be executed as soon as the appellant pays the balance of Rs. 70,000/ -. On 17-10-1979, the appellant paid a further sum of Rs. 60,000/- to the respondent No. 2, towards the loan. On 8-11-1979, a further sum of Rs. 5,000/- was advanced by the appellant to the respondent No. 2. Thereafter, the respondent No. 2 did not want to enter into the registered Deed of Mortgage by Conditional Sale and avoided receipt of balance of Rs. 5,000/- towards the said loan. The appellant, therefore, filed the suit against the respondents when it was made clear to the appellant that the respondent No. 2 was not ready and willing to execute the said Mortgage Deed in respect of the property situate at Arera Colony, Bhopal, mentioned in Schedule-A and Schedule-B of the plaint.