RAJESH KUMAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) The present appeal has been filed against the order dtd. 7/7/2021 passed by the Additional District Judge No.1, Hanumangarh whereby the application under Order XXXIX Rules 1 and 2, CPC as preferred by the plaintiffs/respondents has been allowed.

(2.) The case of the appellants/defendants is that earlier after filing of the suit for specific performance of contract, the plaintiffs preferred an application under Order XXXIX Rules 1 and 2, CPC with a prayer that the property in question be not alienated and no charge be created on the said property. During the pendency of the said application, two subsequent applications under Sec. 151 CPC were preferred for restraining the defendants from raising construction on the disputed land. The first application under Order XXXIX Rules 1 and 2, CPC was finally decided by the Court on 5/4/2021 whereby the defendants were restrained from alienating as well as creating any charge over the property in question. The said order was silent as to raising of the construction by the defendants meaning thereby the learned Court had rejected the prayer of the plaintiffs for restraining the defendants from raising any further construction.

(3.) Learned counsel for the appellants submitted that the order dtd. 5/4/2021 was never appealed against and therefore, the same has become final for all purposes. After two months of the decision on the said application, the second application under Order XXXIX Rules 1 and 2, CPC has been preferred by the plaintiffs on the same ground, on the same cause of action and also for the same relief. Counsel submitted that the same could not have been entertained by the Court below and the relief as granted could not have been granted. In support of his submission counsel relied upon the Hon'ble Apex Court judgment passed in the case of Arjun Singh Vs. Mohindra Kumar and Ors; Civil Appeal No.768/1963 [AIR 1964 SC 993] and the Karnataka High Court judgment passed in the case of K.C. Chandrashekar Raju Vs. D. Venkatesh and Ors: W.P. No. 378/2006 [ILR 2008 Karnataka 1660].