Rajasthan High Court
Harihar Das And Ors vs Mohandas Srivastava And Ors on 21 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 180/2008
1. Harihardas Srivastav, son of Shri Tarkeshwar ji, resident of
266, Shopping Centre, Kota.
2. Omkardas Srivastav, son of Tarkeshwardas Ji (Dead) through
his legal representatives:
2/1. Smt. Surpadevi, wife of late Omkardas
2/2. Rohit Srivastav, son of late Shri Omkardas
2/3. Rahul Srivastav, son of late Shri Omkardas
2/4. Anila Srivastav, daughter of late Shri Omkardas and wife of
Shri Sanjay
2/5. Vatsala Kulsresht, daughter of late Shri Omkardas, wife of
Shri Omprakash
2/6. Seelima, daughter of late Shri Omkardas, wife of Amit
Srivastav, all r/o 266, Shopping Centre, Kota.
----Appellant-plaintiffs
Versus
1. Mohandas Srivastava, son of Tarkeshwardas Ji, C/o 266,
Shopping Centre, Kota though his legal representatives:
1/1 Smt. Hemlata, wife of Mohandas Srivastav R/o 266,
Shopping Centre, Kota
1/2. Pramod son of Mohandas Srivastav r/o 266, Shopping
Centre, Kota
1/3. Smt. Shipra D/o Mohandas Srivastav W/o Shri Gaurav
Srivastav, Karni Niwas, Ajmer Road, Beawar.
1/4. Smt. Shivangi D/o and W/o Shri Ashish Khare Flat No.202
Regency Kolar Road, Bhopal (MP).
2. Kishandas Srivastav, son of Tarkeshwardas Ji, C/o Sodala,
Jaipur, since deceased through his legal representatives:
2/1 Anshul Srivastav, son of late Shri Kishandas, r/o 22, Shanti
Nagar, DCM, Sodala, Jaipur.
2/2. Smt. Sharda Srivastav, wife of Shri Kishandas, r/o 22,
Shanti Nagar, DCM, Sodala, Jaipur.
2/3. Sonal Srivastav, daughter of Shri Kishandas, r/o 22, Shanti
Nagar, DCM, Sodala, Jaipur.
3. The Kota Central Co-operative bank Limited, New Anaj Mandi
through Manager.
----Respondents-defendants
For Appellant(s) : Mr. Ajeet Kumar Sharma Sr. Adv.
assisted by Mr. Rachit Sharma
through VC
For Respondent(s) : Mr. Amar Kumar for
Mr. R.P. Vijay
Ms. Anita Agarwal
HON'BLE MR. JUSTICE SUDESH BANSAL
(2 of 3) [CFA-180/2008]
Order
21/04/2022
1. Appellant-plaintiffs have filed this first appeal, assailing
judgment and decree dated 20.02.2008 passed by Additional
District Judge No.3, Kota in Civil Suit No.33/2004 whereby suit for
declaration, partition and permanent injunction has been
dismissed.
2. In this appeal, the dispute between parties is about division
of property bearing No.266, Shopping Centre, Kota.
3. It is not disputed between parties that respondent-defendant
No.1 took loan from Kota Central Co-operative Bank Ltd. by
putting the suit property mortgaged. Since dues of Bank have not
cleared, both parties jointly submit that in order to clear due of
Bank, they want to avail the benefit of OTS Scheme floated by the
Bank.
4. A joint application (No.1/2022) purportedly under Section
151 CPC has been filed by appellant No.1 and 2/2 and respondent
No.1/2. It has been mentioned in the application that contesting
parties have amicably and mutually settled the dispute of division
as well, however, since the suit property is mortgaged with the
Bank, they want to clear dues of Bank first. It has been alleged
that Bank has floated amnesty scheme and parties are willing to
take benefit of that scheme by depositing dues under OTS
Scheme.
5. Appellant has paid part payment of Rs.6.5 lacs, to participate
in the OTS Scheme, a joint request has been made that parties
may be allowed to clear dues of Bank on the suit property under
the OTS Scheme and to this extent, the stay order dated
09.04.2008 be relaxed/ modified.
(3 of 3) [CFA-180/2008]
6. Having heard counsel for both parties.
7. In view of the facts mentioned above, there is a change in
circumstances after passing the stay order dated 09.04.2008.
8. Considering the aforesaid facts and in the interest of justice,
this Court modify the stay order dated 09.04.2008 to the extent of
allowing parties to clear dues on the suit property under the OTS
Scheme of Bank.
9. With aforesaid observations, application (No.1/2022) stands
disposed of.
10. Prior to the application (No.1/2022), an application
(No.43239/2019) was filed by respondent No.1 seeking
permission to sale one shop for the purpose of clearing dues of
Bank.
11. Now in view of aforesaid order, application (No.43239/2019)
becomes infructuous and same is dismissed as having become
infructuous.
12. It is needless to say that after clearance of dues of Bank, the
title deed of suit property would be released by the Bank so that
parties may act upon as per terms and conditions of mutual
settlement.
(SUDESH BANSAL),J
NITIN /129
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