SAYED MANSOOR JALIL Vs. GOYAL BUILDERS

JUDGEMENT

(1.) THE trial Court, by the impugned order under Order 39 Rules 1 and 2 of the Code of Civil Procedure, has restrained the defendants from alienating the suit -property on the ground that in a suit filed by the respondent No.1, for specific performance of contract, there is a prima facie case in favour of the respondent No.1. The balance of convenience is also in his favour and it was further found that the respondent No.1 shall suffer irreparable injury, in case, the temporary injunction is not granted to him. Accordingly, the trial court specifically directed that the defendants shall not alienate the suit -property, i.e. land bearing Khasra No. 69, situate at Kohefize, Tahsil Huzur, District Bhopal, during pendency of the trial.

(2.) IT appears that the respondent No.1 filed an application under Order 38 Rule 5 of the Code of Civil Procedure before the trial Court, which was rejected by the trial Court on an affidavit filed on behalf of the defendants to the effect that they were not alienating the suit -property and they had no intention to do so. Thereupon, a Civil Revision No. 2161 of 1997 filed by the respondent No.1 was rejected by this Court on 9th of December, 1997. It is c1ear from Annexure A -5, filed alongwith this appeal that the defendants had taken up themselves not to alienate the suit -property and on this ground the said revision was dismissed by this Court. It appears that in that case, the learned counsel for the respondent No. 1 argued that the trial Court should have required the defendants to furnish an undertaking to the effect that they shall not alienate the suit -property or it should have passed an order of restraint. This argument was rejected by this Court saying that the Court would not express any opinion on this aspect of the matter and the respondent No. 1 was free to move an application to this effect before the trial Court. It appears that the respondent No.1 thereafter filed an application before the trial Court under Order 39 Rules 1 and 2 of the Code of Civil Procedure, pursuant to the order of this Court dated 9.12.97, passed in Civil Revision No. 2161 of 1997.

(3.) IN this appeal, the learned counsel for the appellant/defendant No.1 was unable to show to this Court, in what manner the appellant shall be prejudiced if the impugned order dated 27.4.98 is not set aside. It was pointed out to the learned counsel for the appellant that the order granting temporary injunction is in accord with the affidavit filed on behalf of the defendants themselves before the trial Court during the decision of the application under Order 38 Rule 5 of the Code of Civil Procedure. Having got the application under Order 38 Rule 5 of the Code of Civil Procedure dismissed on an affidavit filed on behalf of the defendants stating that they shall not alienate the suit -property, the order of temporary injunction would not harm the appellant in any manner. It further ensures the right of the respondent No. 1 in the suit for specific performance of the contract that there shall be no difficulty in executing the decree, in case, the trial Court comes to the conclusion that the respondent No.1 is entitled to a decree for specific performance of the contract. The appellant cannot change his stand in this appeal that he is entitled to alienate the suit -property even after he has filed an affidavit. The affidavit filed in respect of the application under Order 38 Rule 5 of the Code of Civil Procedure can be read for deciding an application under Order 39 Rules I and 2 of the Code of Civil Procedure too as an admission of the appellant.