[Cites 2, Cited by 0]
Calcutta High Court
Devyank Kankaria vs Salapuria Investment Private Limited ... on 24 December, 2025
Author: Supratim Bhattacharya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
OD-14
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/57/2021
WITH CS/58/2021
IA NO: GA/1/2021
DEVYANK KANKARIA
VS
SALAPURIA INVESTMENT PRIVATE LIMITED ANDANR.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
And
The Hon'ble JUSTICE SUPRATIM BHATTACHARYA
Date:24th December, 2025.
APPEARANCE:
Mr. Sounak Bhattacharya, Adv.
Mr. Ritesh Kr. Ganguly, Adv.
..for the appellant
.
Mr. Chayan Gupta, Adv.(v.c.)
Mr. Piyush Agrawal, Adv.
Mr. Ranjan Ray, Adv.
Mr. Tapashya Bhattacharya, Adv.
..for the respondent no. 1.
Mr. Debrup Bhattacharya, Adv.
Mr. SubrataGoswami, Adv.
..for the respondent no. 2.
The Court:-The present appeal has been preferred by a third party to the
suit in which the impugned order was passed.
The suit from which the present appeal arises is a money suit instituted
by the plaintiff/respondent no. 1 herein against the defendant/ respondent no.
2, the latter being the mother of the present appellant. In the said suit, filed in
the jurisdictional Commercial Court, leave was granted under section 12-A of
the Commercial Courts Act, 2015 and an interim order was passed injuncting
the defendants/ respondent no. 2 from creating third party rights in respect of
a flat situated at 3A, 14,Ashoka Road, Kolkata -700027.
Learned counsel for the appellant argues that the appellant has already
been granted leave to prefer the appeal despite not being party to the suit. It is
submitted that the appellant is vitally interested in the property situated at
3A,Ashoka Road, 14A, Kolkata-700026, in view of the plaintiff having been
bequeathed such property by virtue of a Will of the plaintiff's father.
By placing reliance on the said Will, annexed to the stay application filed
in connection with the appeal, it is argued that in the third paragraph thereof,
life interest in the said immovable property was demised and bequeathed to the
defendant/ respondent no. 2 (the widow of the deceased testator). However,
upon her demise, the present appellant, who is the son of the testator and the
respondent no. 2, is to become the absolute owner thereof as per the Will.
As such, it is submitted that by grant of the injunction, the rights of the
appellant in the said property have also been affected adversely, thereby
conferring a right on the appellant to prefer the instant appeal.
Learned counsel appearing for the respondent no. 1 submits that
irrespective of the fact whether life interest or absolute interest in the
immovable property-in-question was granted to the appellant or the respondent
no. 2, fact remains that the conspectus of the suit pertains to a money claim,
the necessary corollary of which would be that the defendant therein ought to
be restrained from parting with the immovable asset, in which she has a right,
even ifa semblance of right, to ensure that the decree which may ultimately be
passedin the money suit may not be frustrated.
As such, it is contended that the impugned order suffers from no
illegality whatsoever.
Upon a careful scrutiny of the impugned order, we find that the
same,althoughcouchedas an injunction order, is in the nature of an order of
attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil
Procedure.
Be that as it may, since the present appellant is neither a party, nor was
any order of restraint passed on the present appellant, the order impugned in
the appeal does not bind the appellant in any manner.
Moreover, in view of the frame of the suit in its present form, which is a
money suit simpliciter against the defendant/ respondent no. 2, the appellant,
being a third party to the alleged loan transaction, is neither a necessary nor a
proper party to the suit itself.
Thus, since the appellant is neither bound by the impugned order nor is
a necessary or proper party in the suit, we do not find any locus standi of the
appellant as such to challenge the impugned order.
To allay the apprehension of the appellant as regards the rights of the
appellant in the immovable property being affected, the remedy before the
appellant would at best be, in the event a decree is finally passed against the
defendant/ respondent no. 2 in the money suit and in execution, adverse
orders in respect of the immovable property in question is sought to be passed
by the executing Court, to resist such decree on the strength of the alleged
right of the appellant by way of an application under Order XXI, Rules97-101
of the Code of Civil Procedure.
However, at this stage, it would be premature to entertain the appeal and
interfere with the impugned order at the instance of the third party/ appellant.
In the light of the observations, we do not find any scope of interference
with the impugned order. Accordingly, APOT/57/2021,arising out of
CS/58/2021,is disposed of without interfering with the impugned order.
GA/1/2021 is accordingly disposed of as well.
No order as to costs.
Urgent certified copy of this judgment shall be supplied to the parties,
subject to the compliance of necessary formalities.
(SABYASACHI BHATTACHARYYA, J.)
(SUPRATIM BHATTACHARYA, J)
Arsad
