Mahadev Pershad Agarwal v. Sunil Kumar Agarwal

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No. 973 OF 2018 ORDER:

This civil revision petition under Article 227 of the Constitution of India is filed challenging the decree and decretal order dated 30-12-2017 in C.M.A.No. 1 of 2016 on the file of the Court of XI Additional Chief Judge, City Civil Court, Hyderabad (for short, 'the Court below'), whereby it set aside the order dated 04-12-2015 in I.A.No. 176 of 2015 in O.S.No. 1268 of 2015 on the file of the Court of III Junior Civil Judge, City Civil Court, Hyderabad (for short, 'the trial Court').

2.

The petitioners filed O.S.No. 1268 of 2015 before the trial Court for cancellation of agreement of sale - cum - general power of attorney dated 09-04-2015 vide document No. 1647 of 2015 executed in favour of respondent No. 1 by respondent No. 3. A memorandum of understanding cum undertaking dated 07-04-2014 was executed between the petitioners and respondent Nos. 1 and 2 due to the intervention of respondent No. 3 and in terms of the same, each party has to discharge his/her liabilities and only on such discharge, the parties can deal with the property but respondent No. 3 executed the abovementioned document dated 09-04-2015 in favour of respondent Nos. 1 and 2 without discharging their obligation on the part of the latter. Therefore, sought for cancellation of the said document.

3.

The relief claimed by the petitioners is to cancel the so called agreement of sale cum GPA dated 09-04-2015 as it is null and void. Thus, the petitioners sought the relief of cancellation virtually under Section 31 of the Specific Relief Act, 1963 (for short, 'the Act of 1963') but not under Section 34 of the Act of 1963. The only apprehension of these petitioners is that in case any third party

interest is created, it will lead to multiplicity of proceedings. In fact, any transaction during pendency of a suit is hit by Section 52 of the Transfer of Property Act, 1882 (for short, 'the Act of 1882'). Therefore, alienation, if any, or creation of any charge will have no impact on the decision in the main suit after trial.

4.

For grant of interim injunction, prima facie case, balance of convenience and irreparable loss are sine qua non under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (for short, 'C.P.C.'). The trial Court without adverting to Section 52 of the Act of 1882 and the validity of such transaction during pendency of the suit passed an order of status quo. Even after consideration of entire material, I find no prima facie case in favour of the petitioners and that the petitioners will not sustain irreparable loss in case no injunction is granted since such transaction is hit by Section 52 of the Act of 1882 and the person who purchased the property is bound by the decree if any passed in favour of the petitioners and entitled to enforce the same against the respondents and any other person through whom they are claiming.

5.

In the light of the above, the Court below allowed the appeal and in my view correctly. Therefore, I find no ground to interfere with the judgment of the Court below. The revision petition is devoid of merits and the same is liable to be dismissed.

6.

The civil revision petition is accordingly dismissed.

Pending miscellaneous petitions, if any, in this civil revision petition shall stand dismissed in consequence.

_____________________________ Date: 16-02-2018.

M.SATYANARAYANA MURTHY, J.

JSK