SARAT CHANDRA PANDA Vs. HARI DAS

JUDGEMENT

(1.) This appeal under Order 43. Rule 1 (r) of the; Civil P. C. is directed against the order, of the learned Subordinate Judge of Berhampur rejecting 9 prayer for injunction against the respondents from proceeding with execution of the decree obtain ed in Title Suit No. 33 of 1978, in E. P. No. 43 of 1981.

(2.) The appellant as Plaintiff has, filed Title Suit No. 102 of 1982 on the allegation that he purchased the disputed property by a registered sale deed dated 30-12-1980 for a consideration of Rupees 10,000/- from Hari Das and was put into possession. Rs. 3,700/- out of the consideration money was paid before the Sub-Registrar and that fact has been duly endorsed on the title deed. Balance of Rs. 6,300/- was paid to one Narasimha Mohapatra under instructions of Hari Das to be adjusted towards litigation expenses and other charges incurred by Narasimha on behalf of Hari Das. Hari Das, the admitted owner, being a leper was under the care of his maternal uncle Gobinda Mohapatra, the third defendant. When the attack of leprosy became virulent, the maternal uncle forcibly drove Hari Das out of the house. The third defendant taking advantage of the situation set up his own son Radhanath (the second defendant) as adopted son of Hari Das with a view to grabbing the properties which the leper owned. In respect of the disputed property a proceeding under Section 145 of the Cri. P. C. was taken which terminated against the plaintiffs of Title Suit No. 33 of 1978, They, therefore, instituted the Title Suit No. 33 of 1978 claiming adoption in favour of plaintiff No. 1 and impleaded defendants 1 to 4 who had claimed tenancy rights and Hari Das as defendant. No. 5 and the present plaintiff's transferor Narasimha Mohapatra as defendant No. 6. The said suit was ultimately decreed and a first appeal has been carried before this Court which is pending. The decree was put into execution. The present plaintiff filed the Title. Suit No. 102 of 1982 on the allegation that he had purchased the property during the pendency of the previous suit from Hari Das and since he was not a party to the litigation, the decree would not foe binding on him; if execution is allowed to proceed and the present plaintiff is--dispossessed, irreparable loss would be caused to him.

(3.) The trial court looked into these allegations and did not agree to exercise his discretion in favour of the appellant. The petition for injunction was thus rejected and that has led to the filing of this appeal.