SULOCHANA VERMA Vs. RAM CHANDRA PRASAD

JUDGEMENT

(1.) The civil revision petition has been filed against the order dated 22.3.2004 passed by Munsif, IIIrd, Gaya in Mortgage Suit No. 33 of 1997 by which he refused to frame preliminary issue regarding maintainability of the suit.

(2.) The relevant facts of the case are that plaintiff-opposite party filed Title Suit No. 102 of 1990 against the defendant- petitioner. The suit was for a decree of redemption of the mortgage holding in favour of the plaintiff on payment of Rs. 4680/- or any amount which the Court determines and for direction to the defendant to deliver vacant possession of the mortgaged property to the plaintiff failing which the same may be effected through the process of the Court. The defendant-petitioner appeared in the suit and filed written statement. The suit was decreed on 10.12.2002 against which the petitioner filed Title Appeal No. 1 of 2003. After hearing the parties the appeal was allowed and the judgment and decree of the trial Court was set aside. The matter was remitted to the trial Court directing to proceed afresh in the light of the observation made in the judgment and order. For better appreciation the relevant portion of the order is quoted hereinbelow :--

(3.) After remand an application was filed by the petitioner before the trial Court that the plaintiff-opposite party has sold the property in suit and has no interest. In the circumstances the suit is not maintainable at his instance and as such made a prayer that maintainability matter be decided as a preliminary issue. A rejoinder to the said petition was filed on behalf of the plaintiff-opposite party stating therein that though he sold the property, it cannot be said that at his instance the suit is not maintainable. The vendee will step in the shoes of the vendor and as such question raised by the petitioner is not at all tenable. In fact, the plaintiff-opposite party disputed the claim of the petitioner that maintainability matter be decided as a preliminary issue. The Court after hearing the parties and considering all the aspects has come to a conclusion that the appellate Court has remitted the matter to this Court with observation/direction and this Court has to decide the case on limited issue as has been indicated by the appellate Court and as such question of maintainability cannot be decided at this stage. The order was passed to the aforesaid effect on 22.3.2004 which has been impugned in the civil revision petition.