Rajasthan High Court - Jodhpur
Natha Singh vs Smt. Balvindra Kaur & Anr on 7 January, 2009
Author: Prakash Tatia
Bench: Prakash Tatia
1
SB Civil Writ Petition No.9504/2008
Natha Singh. vs. Balvindra Kaur & Anr.
S.B. Civil Writ Petition No.9504/2008
Natha Singh.
vs.
Balvindra Kaur and another.
Date : 7.1.2009
HON'BLE MR. PRAKASH TATIA, J.
Mr.Vijay Jain, for the petitioner. Mr.R Bhatnagar, for the respondents.
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Heard learned counsels for the parties finally as both the learned counsels argued the writ petition on merits.
The trial court granted injunction order in favour of the plaintiff/petitioner vide order dated 22.10.2007 against which the appeal was preferred by the respondents. The appellate court upheld the order of injunction so far as preventing the respondents from selling the property in dispute but removed the condition against the mortgage of property in dispute by the respondents. Hence, this writ petition has been preferred.
2SB Civil Writ Petition No.9504/2008 Natha Singh. vs. Balvindra Kaur & Anr.
Once the two courts below found prima-facie case, balance of convenience and irreparable injury in favour of the petitioner and that finding has been concurrent, then during pendency of the suit, if the respondents will be allowed to create charge or mortgage the property in dispute, then that will be creating the charge over the property which may be detrimental to the interest of the petitioner to the extent that the mortgagee who may advance the loan to the mortgagor with the virtual leave of the Court, may have claim over the entire immovable property which may deprive the petitioner from the property to its full value if the consideration and interest will be burdened.
There was no reason for the appellate court to remove the condition against the mortgage of the property imposed against the respondents and thereby, the first appellate court exceeded its jurisdiction by interfering in the order passed by the trial court.
3SB Civil Writ Petition No.9504/2008 Natha Singh. vs. Balvindra Kaur & Anr.
Learned counsel for the respondents relied upon the judgment of this Court delivered in the case of Julian D.J. Harry vs. P.K. Khanna reported in 2002(1) WLC (Raj.) 210. The facts of the said case are entirely different. In that case, the courts found that there was no prima-facie case in favour of the plaintiffs and in that situation, the construction of property in suit sought to be raised by the defendant, was not interfered by this Court. In this case, as stated above, all the three ingredients were found by the two courts below in favour of the plaintiff.
In view of the above, this writ petition is allowed and the order of the appellate court dated 23.10.2008 is set aside.
(PRAKASH TATIA), J.
S.Phophaliya