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c
A-1
% 05.7.2011
Present: Mr. T.A. Francis, Advocate for the petitioner.
+ CM (M) No.118/2011 & CM Nos. 2416-17/2011
*
The order impugned before this Court is order dated
05.06.2010. A prehminary issue had been framed. It reads as under
"Whether suit of the plaintiffis not maintainable in view ofpreliminary objection taken by defendant No. 3 in his written statement?"
An application under Order 7 Rule 11 of the Code of Civil
Procedure (hereinafter referred to as the 'Code') had been preferred by defendant No. 3 which had been rejected by this order i.e. order dated 05.06.2010. The contention of the petitioner/defendant No. 3 was that the terminal/retiremental benefits of his wife cannot be attached even in execution proceedings.
The present suit had been filed by the plaintiff seeking the relief of injunction; he was a surety/guarantor of the loan which had been advanced to the wife of defendant No. 3. The prayer made in the present suit is that terminal benefits of deceased
Sushma Lata Nanda should not be released by her employer i.e.
(defendant No. 1) as the amounts due to defendant No. 2 (Punjab
National Bank) are hable to be paid out of the said dues. The contention of defendant No. 3 was that such a suit is not
2011:DHC:10447
M": maintainable; however his application under Order 7 Rule 11 of the
Code had been rejected. Thereafter a review petition had been preferred by him which had been disposed of on 31.07.2010; provisions of Section 140 of the Indian Contract Act regarding the right of the creditor to recover the amount from the guarantor independent of the principal debtor had also been considered; review petition had also been dismissed.
Powers of this Court under Article 227 of the Constitution of
India have to be exercised only if there is a patent illegality or a gross injustice which has accrued to a party. This does not appear to be one such case. The present suit had been filed by the plaintiff seeking a declaration and injunction which is a discretionary relief.
The grievance of the plaintiff is borne out from the fact that if the terminal benefits of deceased Sushma Lata Nanda are released to her legal heirs, the liability of defendant No. 2 (Punjab National
Bank) cannot be addressed and the surety would have to pay up this amount. The impugned order has only rejected the apphcation under Order 7 Rule 11 of the Code; parties are yet to go for trial.
There is no patent illegality in the impugned order; it calls for no interference.
Petition as also the pending applications ard dismissed.
INDERMEET KAUR, J.
>yl-tsrck-Jj \,.jr
2011:DHC:10447
A-1
% 05.7.2011
Present: Mr. T.A. Francis, Advocate for the petitioner.
+ CM (M) No.118/2011 & CM Nos. 2416-17/2011
*
The order impugned before this Court is order dated
05.06.2010. A prehminary issue had been framed. It reads as under
"Whether suit of the plaintiffis not maintainable in view ofpreliminary objection taken by defendant No. 3 in his written statement?"
An application under Order 7 Rule 11 of the Code of Civil
Procedure (hereinafter referred to as the 'Code') had been preferred by defendant No. 3 which had been rejected by this order i.e. order dated 05.06.2010. The contention of the petitioner/defendant No. 3 was that the terminal/retiremental benefits of his wife cannot be attached even in execution proceedings.
The present suit had been filed by the plaintiff seeking the relief of injunction; he was a surety/guarantor of the loan which had been advanced to the wife of defendant No. 3. The prayer made in the present suit is that terminal benefits of deceased
Sushma Lata Nanda should not be released by her employer i.e.
(defendant No. 1) as the amounts due to defendant No. 2 (Punjab
National Bank) are hable to be paid out of the said dues. The contention of defendant No. 3 was that such a suit is not
2011:DHC:10447
M": maintainable; however his application under Order 7 Rule 11 of the
Code had been rejected. Thereafter a review petition had been preferred by him which had been disposed of on 31.07.2010; provisions of Section 140 of the Indian Contract Act regarding the right of the creditor to recover the amount from the guarantor independent of the principal debtor had also been considered; review petition had also been dismissed.
Powers of this Court under Article 227 of the Constitution of
India have to be exercised only if there is a patent illegality or a gross injustice which has accrued to a party. This does not appear to be one such case. The present suit had been filed by the plaintiff seeking a declaration and injunction which is a discretionary relief.
The grievance of the plaintiff is borne out from the fact that if the terminal benefits of deceased Sushma Lata Nanda are released to her legal heirs, the liability of defendant No. 2 (Punjab National
Bank) cannot be addressed and the surety would have to pay up this amount. The impugned order has only rejected the apphcation under Order 7 Rule 11 of the Code; parties are yet to go for trial.
There is no patent illegality in the impugned order; it calls for no interference.
Petition as also the pending applications ard dismissed.
INDERMEET KAUR, J.
>yl-tsrck-Jj \,.jr
2011:DHC:10447
JUDGMENT