Mukesh Saini v. Madanlal Saini & Ors.

1. Challenging an order dated 10.07.2018 passed by the learned Court below in CS(OS)1169/2014,this appeal has been filed.

2. Parties to the suit belong to a Hindu undivided family. Appellant/plaintiffbeing eldestson ofdefendant/respondent No.l,one Asha Rani expired intestate. She was owner of the suit property in question situated in Kalkaji, New Delhi. Respondent No.l had entered into an agreement to sell the suit property by agreement dated 27.01.2014 and 2019:DHC:7694-DB No.l to sell/transfer any ofthe suit property in any way or to create any third party interest in favour ofany other person to restrain the respondent No.1 to go ahead with the same as per agreement dated 27.01.2014, It is the case of the plaintiff before us that ifthe respondent is not restrained, he will create third party interest and if the sale deed is executed it would create further confusion in the matter and therefore in permitting execution of the sale deed on certain conditionsthe learned Single Judge has committed an error.

3. We have heard learned counsel for the parties and we find that while ^ dealing with the application under Order XXXIX Rule 2A CPC the interim protection granted by the learned Single Judge in Para 5 found that except the plaintiff herein all other co-owners want to go ahead with the same transaction. It is also found that the proposed purchaser has been given possession ofthe suit property much prior to filing ofthe suit and they have already started raising construction. A substantial sum of ?50 lakhs as agreed to out of the sale consideration of ?2.[4] erores have finally been granted. The learned Court found that the agreement to sell has various consequences in case the sale deed is not executed and the same would lead ^ to furthercomplication and multiplicity.oflitigation.

4. Taking note ofall these circumstances,the plaintiffs interest has been adequately protected while granting injunction and the injunction has been granted in the following terms: "5. Under such circumstances, the order that would balance the equities between all the parties concerned, would be to secure the interest ofthe Plaintiffby directing the Defendants to deposit 1/5^^ ofthe sale consideration in the Court. The npfendants The sale deed and other documents etc.shall be executed infavour oftheproposedpurchasers of six weeks upon receipt of the complete rae proposedpurchasers shall make a depositofRs.48lakhs wmZ»arGeneralofthis Court,in ordertosafeguard the interest ofthe Plaintiff. The amount Jcpnt in an FDR by the Registrar General ofthis Court in slu ^-.-2 i tZ7JerlnZlZepaidto defendants. Thed^ositof Rs.48lakhsshallabide bythefinaldecisionin thesuit.

5. Taking note of the aforesaid circumstances and the fact that the learned Single Judge has already protected the interest of the plaintiff adequatelyandthesalehasbeenmadeSubjecttofmaldecisionofthesuit,it does not cause any prejudice to the appellant and therefore the discretion exercised in grantofinjunctiondoesnotcallforanyinterference.

6. Accordingly, the appeal as well as the pending application stand disposed of.

CHIEF JUSTICE V.KAMESWARRAO,J MARCH 07,2019 kks