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1 - 7 of 7 (0.21 seconds)Mandali Ranganna & Ors. Etc vs T. Ramachandra & Ors on 30 April, 2008
16. Upon applying the principles laid down in the aforesaid judgments to
Signature Not Verified
Signed By:SAKSHI CS(OS) 437/2021 Page 8 of 12
RAMOLA
Signing Date:03.27.2022
10:09:25
the facts of the case, I am of the view that in the present case, the plaintiff
has failed to make out a prima facie case for grant of temporary injunction,
restraining the defendants from carrying out construction work in the suit
property and from selling, disposing or creating any third party interest in
the suit property. At best, the case of the plaintiff is with regard to the
deficient amount of consideration of Rs.95,00,000/-, which is a monetary
claim. If the plaintiff succeeds in the present suit she would be entitled to
recover the aforesaid amount from the defendants. It is to be noted that that
the plaintiff has preferred the present suit only in September, 2021, after
almost 16 months of the Sale Deed dated 9th March, 2020, during which
time period the defendants were free to deal with the properties exclusively.
Raman Tech. & Process Engg. Co. & Anr vs Solanki Traders on 20 November, 2007
20. In so far as I.A. No.11829/2021 is concerned, the law with regard to
the provisions of Order XXXVIII Rule 5 of the CPC has been settled by the
Supreme Court judgment in Raman Tech. & Process Engg. Co. & Anr. Vs.
Solanki Traders, (2008) 2 SCC 302, as below:-
Dalpat Kumar And Anr. vs Prahlad Singh And Ors. on 16 December, 1991
14. The counsel for defendants has placed reliance on the judgment of the
Supreme Court in Dalpat Kumar and Anr. Vs. Prahlad Singh and Ors.,
(1992) 1 SCC 719, paragraphs 4 and 5 of which judgment are set out
below:-
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
The Amending Act, 1897
Premraj Mundra vs Md. Maneck Gazi And Ors. on 29 January, 1951
6. A defendant is not debarred from dealing with his property
merely because a suit is filed or about to be filed against him.
Shifting of business from one premises to another premises or
removal of machinery to another premises by itself is not a ground
for granting attachment before judgment. A plaintiff should show,
prima facie, that his claim is bona fide and valid and also satisfy
the court that the defendant is about to remove or dispose of the
whole or part of his property, with the intention of obstructing or
delaying the execution of any decree that may be passed against
him, before power is exercised under Order 38 Rule 5 CPC.
Courts should also keep in view the principles relating to grant of
attachment before judgment. (See Premraj Mundra v. Md. Manech
Gazi [AIR 1951 Cal 156] for a clear summary of the principles.)"
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