HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL No.71 of 2021
JUDGMENT : (per Hon'ble Sri Justice M.S. Ramachandra Rao)
This Appeal is filed challenging the order dt.27-01-2020 in
I.A.No.1401 of 2016 in O.S.No.26 of 2016 of the Principal District
Judge at Nizamabad.
2. The appellants herein are plaintiffs in the suit.
3. They filed the said suit against the respondents for partition of
the plaint schedule properties and for allotment of shares to them and also for a direction to respondents to pay Rs.15,00,000/- p.a. towards mesne profits from the date of suit till date of delivery of their shares.
4. In the plaint schedule, the appellants have mentioned the details of 21 immoveable properties and also mentioned as item No.22, a sum of Rs.2,47,05,890/- said to be surplus amount lying with the respondent No.13 Canara Bank (defendant No.13) after the sale of properties mentioned at serial No.11-14 mentioned at para-4 of the plaint.
5. It was the contention of the appellants in the suit that suit schedule properties including item No.11 to 14 mentioned in para-4 of ::2::
MSR,J & TVK,J C.M.A.No.71 of 2021 the plaint are the joint family properties of late Gangaram, father-in- law of appellant No.1 and grand-father of appellant Nos.2 and 3 along with his brothers H.Narasiah and H.Kishan, who are respondent Nos.4 and 6 and who constitute a joint family.
6. According to the appellants, they are entitled to 8.33% share in this joint family properties. They allege that there was mismanagement and misappropriation by 2nd respondent, that certain amounts had been borrowed from the Canara Bank, Nizamabad (13th respondent) and default was committed which resulted in sale of items-11 to 14 mentioned in para-4 of the plaint and a surplus amount of Rs.2,47,05,890-97 Ps had been received by the 13th respondent and was lying with it.
7. Appellants had filed I.A.No.1401 of 2016 in the said suit for an ex parte ad interim injunction restraining the respondents from alienating the suit schedule properties.
8. Along with the said application, they also filed I.A.No.37 of 2018 under Section 151 C.P.C. for a direction to respondent Nos.1, 2, 4, 6 and 13 to deposit Rs.2,47,05,890/- shown as item No.22 of the suit schedule properties to the credit of the suit before the Court below.
9. Counter-affidavit was filed by respondent No.13 Bank stating that sale had been conducted under the provisions of the SARFAESI ::3::
MSR,J & TVK,J C.M.A.No.71 of 2021 Act, 2002 and the items which had been mortgaged to it had been sold by it.
10. Before the Court below, none of the respondents except respondent No.13 filed any counter-affidavit in both the I.As.
11. The Court below then disposed of I.A.No.37 of 2018 on 27-01-2020 stating that the properties were sold by respondent No.13 under the SARFAESI Act by complying with the provisions of the said Act and there was no willful violation of the orders granted by the Court below on 11-11-2016 restraining alienation of the properties.
12. It then observed also in its order that in view of orders in I.A.No.37 of 2018, I.A.No.1401 of 2016 had become infructuous as the properties which are subject matter of the schedule in the said I.A. were sold by 13th defendant.
13. Having said so, it passed a two line order in I.A.No.1401 of 2016 as under:
"Counters of R1 to R10 and R12 are not filed. In view of the orders in IA No.37 of 2018, this petition is dismissed". THE PRESENT C.M.A.
14. Challenging the said order, this appeal is filed by the appellants/plaintiffs.
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MSR,J & TVK,J C.M.A.No.71 of 2021
15. It is the contention of the learned counsel for appellants that the Court below was under a mistaken impression that 13th defendant/13th respondent had sold all the properties which are mentioned in the schedule in I.A.No.1401 of 2016, and that the same is incorrect.
16. It is pointed out by learned counsel for appellants that only properties mentioned at Sl.No.11 to 14 at para-4 of the plaint were sold by the 13th defendant/13th respondent, and the Court below was under a mistaken impression that all the properties mentioned in the plaint schedule had been sold and this has vitiated the order passed by the Court below.
17. Sri Deepak Bhattacharjee, learned Senior Counsel appearing for Sri Dishit Bhattacharjee, learned counsel for 13th defendant/13th respondent states that 13th respondent had sold item Nos.3, 4, 13 and 14 also which are mentioned in I.A. schedule/plaint schedule.
18. This fact is not disputed by the learned counsel for appellants or learned counsel for 2nd respondent.
19. Learned counsel for 2nd respondent, however, has filed counter- affidavit taking a plea that item Nos.3, 4, 13, 14 and 21 are self- acquired properties of 2nd respondent, and though item Nos.3, 4, 13 and 14 have been sold by 13th respondent Bank, item No.21, being his self-acquired property, no temporary injunction restraining its alienation can be granted by this Court. He further states that he has ::5::
MSR,J & TVK,J C.M.A.No.71 of 2021 no objection if temporary injunction is granted restraining sale of item Nos.1, 2, 5 to 12, 15 to 20 of the plaint schedule.
20. We may point out that no counter-affidavit had been filed by 2nd respondent in the Court below claiming that item No.21 of the plaint schedule is his self-acquired property. Therefore, the Court below had no occasion to consider this aspect of the matter.
21. None of the other respondents have appeared before us and made any submissions other than respondent Nos.13 and 2.
22. In this view of the matter, we set aside the order dt.27-01-2020 passed in I.A.No.1401 of 2016 in O.S.No.26 of 2016 and grant temporary injunction restraining the respondents from alienating Item Nos.1, 2, 5 to 10, 11, 12 and 15 to 20 of the plaint schedule properties/schedule in I.A.No.1401 of 2016.
23. As regards item No.21 of the plaint schedule, since there is a dispute as to whether it is ancestral property or self-acquired property, and since this aspect has not been considered by the Court below, to that extent only, I.A.No.1401 of 2016 is remitted back to the Court below to decide whether the appellants are entitled to injunction restraining its alienation by 2nd respondent. This exercise shall be completed by the Court below by 30-06-2021. Both parties are permitted to adduce evidence in support of their respective claims in regard to item No.21 of the property.
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MSR,J & TVK,J C.M.A.No.71 of 2021
24. The Civil Miscellaneous Appeal is allowed to the extent indicated above. No costs.
25. As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.
___________________________________ JUSTICE M.S. RAMACHANDRA RAO __________________________ JUSTICE T.VINOD KUMAR Date: 19.04.2021 Vsv