DURGA PRASAD KANUNGO Vs. MADHUSMITA ROUT

JUDGEMENT

(1.) THIS appeal is against the order dated 24.1.2013 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No.460 of 2012 arising out of C.S. (1) No.464 of 2012.

(2.) THE appellant is the defendant -opposite party and the respondent is the plaintiff -petitioner before the lower court. On an application under order 39, Rule 1 and 2 read with section 151 C.P.C. filed by the plaintiff -respondent, the learned lower court has restrained the appellant -defendant from alienating the suit property to third party in any manner till disposal of the suit.

(3.) THE case of the plaintiff -respondent is that after the death of their parents, the two brothers amicably partitioned the suit property in equal share and in that partition, Durga Prasad Kanungo got the southern side and Debi Prasad got the northern side. Further case of the respondent -plaintiff is that during his life time late Debi Prasad Kanungo entered into an agreement on 4.3.2011 with the respondent -plaintiff to sell a portion of the suit plot which had fallen in his share for a consideration of Rs.15,00,000/ - and in terms of that agreement, a sum of Rs.8,85,000/ - was paid by her to late Debi Prasad Kanungo on the date of execution of the agreement and also on subsequent dates differential amount were paid by her to Debi Prasad Kanungo amounting to Rs.5,50,000/ -. But, Debi Prasad Kanungo died before execution of the sale deed. He being bachelor at the time of his death, the appellant -defendant, became the sole owner of the property. He was approached by the plaintiff to execute the sale deed by accepting the balance consideration amount. But instead of doing so, the defendant negotiated with third party to sell the suit property. Hence the suit for specific performance of contract and the prayer for interim protection.