Punjab-Haryana High Court
Ranjit Kaur And Ors vs Harmesh Chand on 9 February, 2015
Author: Amit Rawal
Bench: Amit Rawal
RSA No.3315 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.3315 of 2012 (O&M)
Date of decision: 09.02.2015
Ranjit Kaur and others ... Appellants
Vs.
Harmesh Chand ... Respondent
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Amit Jhanji, Advocate
for the appellants.
Mr. Harish Goyal, Advocate
for the respondent.
AMIT RAWAL J. (ORAL)
This regular second appeal is directed at the instance of appellants-defendants against the judgment and decree of the trial Court whereby the suit for recovery of ` 4,50,000/- along with interest @ 12% per annum from the date of advancement of loan till the date of decree along with future interest @ 6% per annum and for permanent injunction restraining appellants-defendants from alienating the land measuring 5 kanals 8 marlas to any person being 1/48th share of total land measuring 260 kanals 15 marlas has been SAVITA DEVI KADIAN 2015.02.21 14:46 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.3315 of 2012 (O&M) 2 decreed.
Appeal filed against the judgment and decree of the trial Court at the instance of the appellant-defendants has also been dismissed.
Mr. Amit Jhanji, learned counsel for the appellants- defendants in support of his grounds of appeal submitted that both the Courts below have committed illegality and perversity in decreeing the suit by injuncting the appellants-defendants from alienating the suit property. He further submitted that respondent- plaintiff has failed to discharge the burden and in the absence thereof, onus could not be shifted upon the appellants-defendants.
Mr. Harish Goyal, learned counsel for the respondent- plaintiff in support of his case, submitted that husband of the appellant-defendant had obtained a loan of ` 4,50,000/- against the pronote dated 20.05.2006, also executed a receipt of even date. The pronote and receipt have duly been proved through the testimony of the respondent-plaintiff and one of the witnesses i.e. PW-1, Kewal Krishan. He further submitted that husband of the appellant- defendant had agreed to pay interest @ 1.5% per annum. Therefore, the Courts below have rightly decreed the suit for the recovery of ` 4,50,000/- along with interest. He further submitted that the Courts below while exercising power under Order 38 Rule 5 of the CPC injuncted the appellants-defendants from alienating the suit property.
I have heard learned counsel for the parties and SAVITA DEVI KADIAN 2015.02.21 14:46 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.3315 of 2012 (O&M) 3 appraised the impugned judgments and decrees of the Courts below and of the view that decree qua recovery of ` 4,50,000/- along with interest @ 12% per annum from the date of advancement of loan till passing of the decree along with future interest @ 6% per annum on the principal amount has rightly decreed by the trial Court as the respondent-plaintiff has proved the execution of pronote and receipt Ex.P1 and Ex.P2, through the testimony of the plaintiff as well as PW2- Kewal Krishan. Defendants-appellants have not been able to cause any dent in the cross examination of the aforementioned witness.
The contention that books of accounts have not been produced also, sans merit, for the reason, that suit for recovery is not based on entry of books but based on execution of pronote and receipt. Since the suit for recovery, prima facie, was based on execution of pronote and receipt having been proved, the Courts below by appreciating oral and documentary evidence decreed the suit for recovery of amount of ` 4,50,000/- along with interest.
As regards second submission of the learned counsel for the appellants-defendants that the trial Court could not have injuncted them from alienating the suit land, ibid, finds force and in support of aforementioned submission, learned counsel for the appellants-defendants has pressed following substantial question of law to be adjudicated by this Court:-
"i) Whether the judgments of the Courts below are SAVITA DEVI KADIAN 2015.02.21 14:46 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.3315 of 2012 (O&M) 4 sustainable on the ground that the suit for permanent injunction has been decreed restraining the appellant from alienating his property?"
Mr. Harish Goyal, learned counsel for the respondent- plaintiff submits that the trial Court has rightly granted the injunction in favour of the respondent-plaintiff and against the defendants- appellants as the respondent-plaintiff would not be able to recover the amount, in case, the defendants are not injuncted.
I am afraid, the aforementioned submission made by learned counsel for the respondent do not have any substance, much less, force, as such injunction tantamounts to attaching the property, and whereas procedure for seeking attachment of immovable property has been prescribed under Order 21 Rule 54 CPC. The provisions of Order 38 Rule 5 CPC can be invoked only during the pendency of the suit, not at the time of decision of the suit. The simpliciter suit for recovery with consequential relief could not have been granted in favour of the respondent-plaintiff. Respondent- plaintiff would be within his right to execute money decree in accordance with the provisions of Order 21 CPC. The finding of the trial Court on issue No.3 as well as that of Lower Appellate Court affirming of such finding are hereby set aside.
In view of the observations given herein above, the judgment and decree of the trial Court is, accordingly, modified to the extent that the respondent-plaintiff would be entitled to the decree of SAVITA DEVI KADIAN 2015.02.21 14:46 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.3315 of 2012 (O&M) 5 simpliciter suit for recovery of `4,50,000/- along with interest @ 12 % per annum from the date of disbursement till passing of the decree with a future interest @ 6% per annum till realization.
Thus, the aforementioned substantial question of law is, thus, answered in favour of the appellants-defendants and against the respondent-plaintiff.
The appeal is partly allowed.
Decree sheet be prepared.
(AMIT RAWAL) JUDGE February 09, 2015 savita SAVITA DEVI KADIAN 2015.02.21 14:46 I attest to the accuracy and authenticity of this document High Court Chandigarh