This Interlocutory Application ... vs Unknown
2023 Latest Caselaw 3762 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

                       I.A. No.2 OF 2023
                               IN
                       A.S.No.72 OF 2023
ORDER:

This Interlocutory Application is filed on behalf of the

petitioner/appellant/plaintiff with a prayer to grant ad interim

injunction restraining the respondents/defendants from alienating

the suit schedule property, pending disposal of the Appeal.

2. The contention of the petitioner/appellant, in brief, is that

he was the plaintiff in O.S. No.33 of 2017 on the file of the Court

of II Additional District Judge at Parvathipuram, Vizianagaram

District (for short, 'the trial Court'). Respondents 1 to 3 herein

were the defendants 1 to 3 before the trial Court. The petitioner

herein filed the Suit seeking a decree for specific performance of

suit agreement of sale. The respondents herein contested the suit.

Learned Additional District Judge erroneously dismissed the suit

vide the decree and judgment, dated 20.12.2021. Challenging the

same, he filed the present Appeal Suit. Taking advantage of

dismissal of the Suit in O.S. No.33 of 2017, the respondents

herein are making hectic efforts to alienate the suit schedule

property in favour of third parties. Hence, this Application for ad-

interim injunction.

AVRB,J IA No.2/2023 in AS No.72/2023

3. Counter is filed on behalf of the respondents with various

contentions even touching the merits of the Suit as well as the

Appeal and all those contentions cannot be looked into while

deciding this Application. So, insofar as the prayer of the

petitioner is concerned, the contention of the respondents is that

the petitioner is not entitled to the relief and he did not approach

the Court with clean hands.

4. Now, the simple question that falls for consideration is

whether the petitioner is entitled to have temporary injunction,

pending disposal of the Appeal?

5. POINT: During the course of hearing when the Court asked

learned counsel for the petitioner/appellant as to whether the

petitioner had the benefit of any interim order in his favour during

pendency of the Suit so as to restrain the respondents from

alienating the suit schedule property in favour of third parties, the

answer is negative. So, it is very clear that the petitioner/appellant

in the capacity of the plaintiff prosecuted O.S. No.33 of 2017

without any apprehension that the defendants therein would

convey the suit schedule property in favour of third parties. It is to

be noticed that merely because the petitioner/appellant sought for

the relief of interim injunction, the same cannot be granted by

AVRB,J IA No.2/2023 in AS No.72/2023

mere asking. It is the duty of the petitioner/appellant to make out

a prima-facie case, especially as to how he got apprehension that

the respondents herein would convey the suit schedule property in

favour of third parties, when he had no such apprehension during

pendency of the suit before the trial Court. The affidavit of the

petitioner/appellant enclosed to the Application did not disclose

the source through which he learnt that the

respondents/defendants are making efforts to dispose of the suit

schedule property in favour of third parties. So, absolutely, the

petitioner, by standing on his own legs, failed to make out a case

so as to get the relief of interim injunction keeping in view of the

well established principles under Order XXXIX Rules 1 and 2 of

Civil Procedure Code, 1908 (for short, 'the CPC'). Apart from this,

the petitioner/appellant challenged the decree and judgment of

the trial Court in dismissing the Suit for specific performance and

filed the present Appeal.

6. According to Section 52 of the Transfer of Property Act, 1882

(for short, 'the TP Act'), during pendency of the Suit in any Court,

the subject matter of the property cannot be transferred so as to

affect the rights of the parties. Apart from this, there is Section 19

of the Specific Relief Act, 1963 (for short, 'the Specific Relief Act')

AVRB,J IA No.2/2023 in AS No.72/2023

so as to enforce the specific performance against any other person

claiming title from the vendor except a transferee for value who

has paid his money in good faith and without notice of the original

contract. Here, pendency of the Appeal is born out by record.

Under the circumstances, the petitioner/appellant has the

advantage of section 52 of the TP Act and further section 19 of the

Specific Relief Act.

7. Viewing from any angle, I am of the considered view that the

statutory provisions as referred to above would take care of the

plight of the petitioner/appellant in case the suit schedule

property is transferred in favour of third parties during pendency

of the Appeal. Here, as the petitioner/appellant failed to make out

a case, the Interlocutory Application is liable to be dismissed.

In the result, the Interlocutory Application No.2 of 2023 is

dismissed. However, it is made clear that any transfer of the

subject matter of the suit schedule property by the respondents

herein shall be subject to section 52 of the TP Act and section 19

of the Specific Relief Act. No order as to costs.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 31.07.2023 DSH