SURENDRANATH DAS Vs. BISWAJIT PANDA

JUDGEMENT

(1.) Defendant No. 1 in a pending suit has filed this revision against the order of the trial Court as confirmed by the lower appellate Court passing an order of injunction restraining defendant No. 1 from alienating the disputed property.

(2.) TITLE Suit No. 446 of 1995 has been filed in the Court of the Civil Judge (Senior Division), Bhubaneswar, for a declaration that the decree passed in Title Suit No. 46 of 1973 -1 is not valid and binding on the plaintiffs and for permanent injunction. During the pendency of the suit, the plaintiffs filed an application under Order 39, Rules 1 and 2, Code of Civil Procedure, seeking to restrain the defendants from interfering with the possession of the plaintiffs over and from alienating the disputed property. The trial Court while rejecting the application for injunction relating to interference with the alleged possession of the plaintiffs on the specific finding that defendant No. 1 was in possession, passed an order restraining defendant No. 1 from alienating the disputed property during pendency of the suit. The said order having been confirmed by the appellate Court, the present Civil Revision has been filed. SPARA>In normal course, keeping in view the limited jurisdiction under Section 115, C.P.C., this Court is very slow to interfere with the concurrent orders of Courts below relating to injunction. However, there are certain peculiar features in this case which justify a modification of the orders passed by the Courts below.

(3.) IT is not disputed that the earlier suit (T.S.46 of 1973 -1) had been filed by the father of the present plaintiffs and the matter had come upto High Court. The present defendant No. 1 was the successful party in the said suit and appeal. The injunction order retraining defendant No. 1 from alienating the disputed property has the indirect effect of preventing defendant No. 1 from enjoying the success in the earlier litigation. In the peculiar facts and circumstances of the case, passing an order of injunction restraining defendant No. 1 from alienating the property appears to be unjustified. Since a suit is already pending, any pendente lite alienation would be hit by the principles of lis pendens and as such the plaintiffs in the event of their ultimate success may not be prejudiced if any alienation is made, as the alienees would be definitely bound by the ultimate decree to be passed in the present pending suit. However, avoid any complication in the matter, while vacating the order of the trial Court regarding injunction, it is directed that if there is an alienation by defendant No. 1, a clause shall be specifically incorporated in the said deed indicating that the disputed property is the subject -matter of Title Suit No. 446 of 1995 and the alienation shall be subject to the ultimate result in the said suit. It is further made clear that whether the property is alienated or not, status quo in respect of the nature of the land shall be maintained and it shall not be altered either by defendant No. 1 or any other party to the suit, or any other person claiming right through defendant No. 1 by virtue of any alienation or otherwise.