Dr. H. Anuradha vs H. Gangadhar
2021 Latest Caselaw 1241 Tel

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.

::4::

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.

::6::

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