JUDGMENT :

Partha Sarathi Chatterjee, J.

1. The instant appeal has been preferred assailing the order no. 26 dated 13.12.2021 passed by the learned Civil Judge, Senior Division, Chanchal, Malda in O.C. no. 187 of 2020 whereby prayer for an interim order made by taking out an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as CPC) was turned down.

2. Factual conspectus leading to filing of this appeal is that the plaintiff no.1/appellant and the plaintiff no.2/respondent no.2 herein filed a suit for specific performance of contract against the defendant/respondent no.1 herein. Along with the plaint, the plaintiffs filed an application under Order 39 Rules 1 and 2 read with Section 151 of CPC.

3. In the said application, it was recited that the defendant (hereinafter referred to as the respondent no.1) happens to be original owner of the suit property who had executed one agreement for sale to sell out the suit property at a consideration money of Rs.94 lakhs to the appellant and one Kollol Kanti Sarkar (hereinafter referred to as Kollol) on 6.2.2012 and at the time of execution of the agreement, respondent no.1 accepted Rs. 10 lakhs as advance. In the aforesaid agreement, it was agreed by and between the parties that within 6.6.2012, the plaintiff no.1 and Kollol would pay rest consideration money to the respondent no.1, who upon receipt of such amount would execute the deed of sale in their favour. In the meantime on 14.3.2012, brother of the respondent no.1 filed one suit against him seeking partition and separate possession of the suit property and the said suit was registered as partition suit no. 120 of 2012 and before 6.6.2012, when the plaintiff no.1 and Kollol approached the respondent no. 1 to perform his part of contract, the said respondent no.1 disclosed that due to pendency of the suit, it would not be possible for him to perform his part of contract. In the application it was further stated that on 17.1.2017, the said partition suit was decided in favour of the respondent no.1 but the judgment and decree passed in the partition suit was impugned in one appeal before this Court, which was registered as F.A.T no. 176 of 2017. Due to pendency of the litigation, the respondent no.1 could not perform his part of contract. Kollol did not want to wait for any further period and then on 22.8.2016, respondent no.1 and Kollol executed one agreement, wherein it was agreed by them that respondent no.1 would execute deed of sale in respect of suit property in favour of plaintiff no.1 and Manoj Agarwal, respondent no. 2 herein in place and instead of Kollol and it was also contended that thereafter, the respondent no.1 took Rs. 25 lakhs and hence, it was claimed that as per two agreements, the respondent no.1 was to execute and register the deed of sale on receipt of rest consideration money being Rs. 59 lakhs since in the meantime, the appeal pending before this Court was disposed of. In the said application, it was also claimed that in the suit property there was a garage which was being used by appellant since 6.2.2012 and since, the respondent no.1 did not come out to perform his part of contract, the appellant and respondent no.2 herein by giving two legal notices dated 24.8.2020 and 12.10.2020 asked the respondent no.1 to execute and register the deed on 15.10.2020 at the office of the Registrar concerned but the respondent no.1 did not turn up to execute and register the deed which forced the appellant and respondent no.2 herein to file the suit. In the application, it was claimed that if the respondent no.1 creates any third party interest in respect of the suit property, plaintiffs would suffer irreversible injury and hence, an appropriate interim order was required to be passed.

4. Record reveals that defendant/ respondent no. 1 herein resisted the application by filing written objection wherein denying all the averments made in the said application, it