KALLU RAM AGRAWAL Vs. KUSUM JAMDAR

JUDGEMENT

(1.) The present appeal has been filed by the appellant being aggrieved by order dated 27.06.2014 passed by the Second Additional District Judge, Gwalior in Civil Appeal No.8A/2011 whereby the order passed by the trial court rejecting the plaint under Order 7 Rule 11 CPC by order dated 22.02.2011 passed in Civil Suit No.21A/2011 has been set -aside and the matter has been remitted back for adjudication on merits.

(2.) Learned counsel for the appellant by taking this court to various paragraphs of the suit submitted that the plaintiff in collusion with the bank authority had mortgaged the disputed property with the bank without disclosing the fact that the respondent/plaintiff had share in it and that consequently the bank is pressing to auction it in recovery proceedings initiated under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI' Act). It is stated that on the basis of said averment the suit was filed by the respondent against which the appellant has filed an objection under Order 7 Rule 11 CPC, which was allowed by trial court by order dated 29.11.2011 but the appellate court by taking into consideration the subsequent events which were not part of the plaint averment has allowed the appeal and remanded the matter back to the trial court for adjudication on merits.

(3.) It is stated that in paragraph 17 of the order, the appellate court has taken into consideration subsequent event that has occurred in which the bank liabilities have been satisfied and a non - encumbrance certificate has been issued by the bank. On the basis of aforesaid subsequent event which has been taken into consideration by the appellate court, it has remanded matter back to the trial court for adjudication on merits.