JUDGMENT :

Biswanath Rath, J.

1. This Civil Miscellaneous Petition involves challenge to the order under Annexures-4 & 5. The order vide Annexure-4 involves dismissal of the interim application under Order 39 Rule 1 & 2 at the instance of the petitioner and the order vide Annexure-5 is dismissal of the appeal as against the order vide Annexure-4 by the appellate authority.

2. Short background involved in the case is that the petitioner as the plaintiff filed Civil Suit No.63 of 2015 impleading the present opposite parties and two others as defendants praying therein for a decree for specific performance of contract and further seeking a direction to the defendants to execute and register the sale deed in favour of the plaintiff in respect of suit land within the time fixed by the Court, further on failure of the same to execute and register the sale deed in favour of the plaintiff through the process of Court with an alternative prayer that in the event, the contract is not legally enforceable to direct the defendant Nos.1 & 2 to refund the entire consideration money alongwith 12% interest per annum till its realization and also for cost and other reliefs. The plaintiff in filing the suit has the specific plea that the suit property belongs defendant Nos.1 & 2. For urgent need of money the defendant Nos.1 & 2 approached the plaintiff-petitioner intending to sale the disputed property for consideration amount of Rs.15,900/-. The defendant Nos.1 & 2 also assured the plaintiff that in the event of making of the payment, they will deliver the possession of the property with a promise to enter into the execution and registration of a sale deed after their names are duly recorded in the Government Record. It is accordingly on payment of money the defendant Nos.1 & 2 executed an agreement for sale in favour of the plaintiff-petitioner on 5.11.2000, on receipt of entire consideration amount in presence of witnesses with delivery of possession in favour of the plaintiff. It is further contended that when the plaintiff-petitioner was in possession of the suit land and while the petitioner was going on asking the defendant Nos.1 & 2 to execute and register the sale deed, the defendant Nos.1 & 2 went on delaying the matter of execution as well as the registration and in the meantime on 25.2.2015 the petitioner was threatened by a stranger the defendant No.3 claiming to have purchased the suit land on 10.07.2010. Further, it has also been brought to his notice that a mutation has already been granted in her favour on 10.07.2010 involving the disputed land. The petitioner while filing the suit for above relief also filed an application under Order 39 Rule 1 & 2 of C.P.C praying therein for add interim injunction. This petition was registered as I.A. No.45 of 2015 and the I.A. was disposed of on contest between the parties with an order of rejection. An appeal was filed challenging the rejection of the I.A. and the Additional District Judge dismissed the F.A.O. No.165 of 2016 giving rise the present C.M.P.

3. Assailing the impugned order, learned counsel for the petitioner submitted that for the trial Court finding a prima facie case in favour of the petitioner and for the claim of right over the disputed property by the different parties, one party claiming to have entered into an agreement with vendor, the defendant No.3 being the other party claiming to have purchased the same property from the same vendor, the trial Court instead of rejecting the application under Order 39 Rule 1 & 2 should have allowed the application. Learned counsel for the petitioner on the same analogy also claimed that the lower appellate authority has also failed to appreciate the above aspect of the matter and passed the wrong and illegal impugned order, which requires to be interfered with and set aside.

4. Referring to the decisions 1st in the case in between Gangadhar Raut v. Binod Bihari Nayak as reported in 1998 (I) OLR – 199, 2nd in the case in between Dattu s/o