SUSIL KUMAR MOTWANI Vs. BEBI PATTNAIK AND ORS.

JUDGEMENT

(1.) Petitioner-plaintiff in W.P.(C) No. 1620 of 2012 has challenged the order dated 18.5.2011 passed by learned District Judge, Khurda at Bhubaneswar in Interim Application No. 76 of 2011 arising out of F.A.O. No. 47 of 2011 confirming the order dated 28.3.2011 passed by learned Civil Judge (Sr. Divn.), Bhubaneswar in Interim Application No. 49 of 2011 arising out of C.S. No. 85 of 2011 rejecting an application filed under Order, 39 Rules, 1 & 2 of the Code of Civil Procedure.

(2.) The defendant filed her objection to the interim application. The court below by order dated 28.3.2011 dismissed the interim application with a finding that prima-facie case and balance of convenience does not lean in favour of the petitioner. The plaintiff preferred F.A.O. No. 47 of 2011 before the learned District Judge, Bhubaneswar being aggrieved with the said order. In the said appeal plaintiff-appellant also filed an application under Order, 39 Rule, 1 of the C.P.C. which was registered as Interim Application No. 76 of 2011. The appellate court by order dated 18.5.2011 rejected the interim application with a finding that appellant has not made out any prima facie case in his favour.

(3.) The parties have already pleaded regarding mortgaging of the property with the Bank at Bhubaneswar by a person who has no such authority to mortgage the property. The said question will be decided in the suit itself on the evidence to be adduced by the parties. In the present case the loan was declared NPA by State Bank of India as well as UCO Bank, Maitree Vihar Branch, Bhubaneswar for which C.S. No. 85 of 2011 was filed for injunction not to sale, mortgage and alienate the suit property. This Court also directed for maintenance of status quo by order dated 9.2.2012 in Misc. Case No. 1382 of 2012 arising out of W.P.(C) No. 1620 of 2012. In spite of the said order of status quo the opposite party alienated the property which will lead to unnecessary harassment and injustice to the petitioner to protect and preserve the property. While considering an application under Order, 39 Rule, 1 of the C.P.C. the Court can make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit.