Narayanrao Ganpatrao Jadhav And Another v. Madhukar Bhau Fulari

904.AO902_2014.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION Vidya Amin APPEAL FROM ORDER NO. 902 OF 2014 WITH CIVIL APPLICATION NO. 1085 OF 2014 IN A.O. NO. 902 OF 2014 Narayanrao Ganpatrao Jadhav & Anr.

...

Appellants/Applicants Vs.

Madhukar Bhau Fulari ...

Respondent Mr. Shrikrishna R. Ganbavale, Advocate for the appellants. CORAM: MRS.MRIDULA BHATKAR, J.

DATE: 12th January, 2016.

P.C.:

In this Appeal from Order, the order dated 3rd May, 2014 passed by 4th Joint Civil Judge Senior Division, Kolhapur below Exhibit 26 in Special Civil Suit No. 207 of 2013 is hereby challenged. 2.

The learned counsel for the appellants has submitted that the appellants have filed money recovery suit against the respondent and in order to secure their money, they have filed an Application Exhibit 26 praying that the defendant/respondent be restrained from alienating House No. 1106, Yashoda Niwas, Patil Mala, Ichalkaranji, Kolhapur. The learned counsel submitted that son of the respondent has borrowed Rs.60,00,000/- and the plaintiffs have lent the said amount to the son of the respondent. Therefore, one agreement dated 9th May, 2012 was executed between the plaintiffs and respondent. The learned counsel further submitted that the appellants have filed Writ Petition No. 7069 of 2014 wherein the 1 / 2

904.AO902_2014.doc Application under Order 38 Rule 5 for the attachment of the property at Exhibit 25 was rejected and at the time of hearing of the said Writ Petition, the Hon'ble Single Judge of this Court by an order dated 10th September, 2015 has directed the respondent that he should not deal with the property in question, i.e. House No. 1106, Yashoda Niwas, Patil Mala, Tal. Hatkanangale, District Kolhapur. As the said order is in force, the appellant has good case on merits.

3.

I have gone through the documents produced herein and also the order passed by the learned Civil Judge Senior Division, Kolhapur on 3rd May, 2014. It appears that the Agreement of Sale dated 9th May, 2012 which is the basis of this suit and for which as it is stated that Rs.60 lakhs were paid by the appellant to the respondent, the properties mentioned in the Agreement are Gat Nos. 924, 925, 936, 937 and thus the properties are the properties owned by Devasthan Inam and cannot be alienated. Under the circumstances, the property which is not the subject matter of the said agreement is to be considered as an independent property and no order can be passed in respect of the said property. The learned Judge has considered the fact and legal position rightly and the application under Exhibit 26 was rejected. I do not find any illegality in the impugned order. Hence, the Appeal from Order is summarily dismissed. Civil Application is also disposed of.

(MRIDULA BHATKAR, J.) 2 / 2