PANKAJ JAIN Vs. SMT. SUSHILA DEVI & OTHERS

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -plaintiff challenging the order dated 5.12.09 passed by the Addl. District & Sessions Judge No. 1, Alwar (hereinafter referred to as 'the trial court') in Civil Misc. Application No. 16/08, whereby the trial court has dismissed the application of the appellant filed under Order XXXIX Rule 1 and 2 of CPC. It appears that the appellant, who happens to be the son of the respondent No. 1 and 4, and the brother of the respondent No. 3 has filed the suit before the trial court seeking partition, declaration and permanent injunction, in which an application under Order XXXIX Rule 1 and 2 of CPC was also filed for temporary injunction restraining the respondent No. 2 -Bank from transferring or selling the suit premises mortgaged with the said Bank.

(2.) IT has been submitted by the learned counsel Mr. G.S. Rathore for the appellant that the suit property belonged to the HUF and the same could not have been mortgaged by the respondent No. 1 with the respondent No. 2 -Bank. He submitted that in the proceedings before the Debt Recovery Tribunal, the appellant was not party and, therefore could not challenge its order. According to him, the trial court has misinterpreted and misappreciated the evidence on record for dismissing the application of the appellant. The court does not find any substance in the submissions made by the learned counsel for the appellant. It appears that the suit has been filed by the appellant -plaintiff in collusion with the respondent Nos. 1, 3 and 4 who happen to be his mother, brother and father respectively, with a view to stall the recovery proceedings of the respondent No. 2 -Bank. It also appears that the Debt Recovery Tribunal had already passed the decree in favour of the respondent No. 2 -Bank and the present appellant had not challenged the said proceedings before the appropriate forum under the SARFEISI Act and the Debt Recovery Tribunal Act. The trial court after having considered the submissions and the evidence on record has rightly dismissed the application of the appellant under Order XXXIX Rule 1 and 2 of CPC by the impugned order, which order does not call for any interference. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.