Rajasthan High Court
M/S Firm Modern Machinery Store vs Shri Girraj Prasad Gupta S/O Shri ... on 27 October, 2021
Bench: Sanjeev Prakash Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1606/2021
1. M/s Firm Modern Machinery Store, Station Road , Alwar
(Rajasthan) Through Its Partner Sanjay Gupta S/o Shri
Narayan Dutt Gupta, Aged About 60 Years, C/o M/s Firm
Modern Machinery Store, Station Road, Alwar
(Rajasthan.)
2. Sanjay Gupta S/o Late Shri Narayan Dutt Gupta, Aged
About 60 Years, R/o Partner Firm Modern Machinery
Road, Station Road, Alwar (Rajasthan.)
----Appellants
Versus
1. Shri Girraj Prasad Gupta S/o Shri Madan Lal Gupta, R/o
Babdi Colony, Rajgarh, Tehsil Rajgarh, District Alwar
(Raj.)
2. Deepti Gupta W/o Shri Sanjay Gupta, Partner Of Firm
Modern Machinery Road, Station Road, Alwar (Rajasthan.)
3. Dhruv Satya Gupta S/o Shri Raman Gupta., Partners Of
M/s Firm Modern Machinery Store, Station Road, Alwar
(Raj.) And R/o Shanti Vatika, Lewari Firm House, Jaipur
Road, Alwar (Raj.)
4. Smt Alka Gupta W/o Shri Raman Gupta, Partners Of M/s
Firm Modern Machinery Store, Station Road, Alwar (Raj.)
And R/o Shanti Vatika, Lewari Firm House, Jaipur Road,
Alwar (Raj.)
----Respondents
For Appellant(s) : Mr. J.P. Goyal, Sr. Advocate with Ms.
Jyoti Swami
For Respondent(s) :
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
27/10/2021
1. This appeal has been preferred against an ad interim order
passed by the court dated 02.08.2021 whereby the appellants
(2 of 3) [CMA-1606/2021]
were restrained from alienating or creating any third party rights.
The property is in ownership of defendant No.2-appellant who is
partner to the firm against which a suit was filed along with
application under Order 38 Rule 5 CPC seeking attachment of
property before judgment as a money suit has been filed claiming
amount as against the firm as well as its partners. The court has
passed an order directing the appellants to file its reply and in the
meanwhile, they have been restrained from alienating the
property.
2. Learned counsel for the appellants submits that there could
not have been any such order passed ex parte as the summary
proceedings under Order 37 CPC had only been filed and there
was no application seeking injunction.
3. Learned counsel for the appellants has taken this Court to
Order 37 to submit that the procedure laid down therein has to be
followed and submits that there is no scope for passing an ad
interim order of restrainment or alienation.
4. I have considered the submissions.
5. While it is true that an appeal would be maintainable against
an ad interim order, this Court finds that the trial court hearing an
application under Order 38 Rule 5 CPC would always have an
inherent power to restrain the defendants from siphoning of the
properties which are sought to be attached and for the said
purpose a restraining order can always be passed while the same
does not create any right in favour of the appellants or
defendants. The order is essentially to protect the property and
not to make the application filed under Order 38 Rule 5 CPC as
redundant or otiose for the said purpose. Therefore, if an order
has been passed, the same cannot be said to be in any manner
(3 of 3) [CMA-1606/2021]
illegal or unjustified. The order impugned does not warrant any
interference. Accordingly, the appeal is dismissed.
6. In the circumstances however, it is deemed appropriate to
direct the trial court to decide the application itself at the earliest
preferably within a period of three months henceforth.
(SANJEEV PRAKASH SHARMA),J
SAURABH/12
Powered by TCPDF (www.tcpdf.org)
