Failure to fulfill conditions of sale consideration warrants injunction on property alienation.

Order on Board

21/01/2025

1. Appellant has filed this appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure , 1908 challenging legality and sustainability of the order dated 09.12.2024 whereby application filed under Order 39 Rule 1 & 2 was allowed in part and have injuncted respondent – defendant from alienating suit property.

2. Learned counsel for appellant submit that appellant has purchased suit property through registered sale deed dated 16.03.2023 and since then, she is in possession of the suit property. Petitioner is owner of suit property through registered sale deed and therefore, learned trial Court erred in passing impugned order, injuncting petitioner from Digitally alienating suit property. He also submits that alienation, if any, of the signed by SHAYNA KADRI suit property during pendency of the suit, will be governed by provision under Section 52 of the Transfer of Property Act , 1882 and therefore, impugned order is bad in law.

3. Learned counsel for respondent No. 2 / State submits that dispute is prima facie, between appellant and respondent No. 1.

4. I have heard learned counsel for the respective parties and also perused the documents enclosed along with this appeal.

5. Appellant has filed copy of sale deed as Annexure-A/2. Perusal of the sale deed would show that appellant has paid sale consideration of Rs. 25,00,000/- through five cheques of Rs. 5,00,000/- each, details of which are mentioned in the sale deed. Appellant has also filed copy of plaint as Annexure-A/3. Perusal of pleadings made in the plaint would show that cheques were given by appellant at the time of execution of sale deed. After execution of sale deed, defendant No. 1 had intimated plaintiff that as on date, sufficient funds are not available in the bank account and therefore, cheques be not deposited in the bank for its clearance immediately. As soon as amount of cheques is deposited in the back by defendant No. 1, she will inform plaintiff and as per pleadings, till filing of the suit, appellant has not paid Rs. 25,00,000/- which is sale consideration for the sale deed executed in favour of appellant.

6. Learned trial Court considering pleadings made in the plaint as also application under Order 39 Rule 1 & 2, further observing that none of the parties to the suit have filed affidavit of nearby land owner to prove possession has not given any observation on the possession as claimed by the parties, however, considering fact that entire amount of sale consideration has not been paid, have injuncted appellant /

defendant No. 1 from alienating suit property.

7. Before this Court also, when question is posed to learned counsel for appellant as to whether he has filed any document to show that on the date of execution of sale deed, she was having sufficient fund in her bank account i.e. Rs. 25,00,000/- of cheques amount, learned counsel for appellant submits that it will be placed in evidence before learned trial Court.

8. Considering entirety of the facts and circumstances of the case, I do not find any infirmity or illegality in the order passed by learned trial Court on an application filed under Order 39 Rule 1 & 2.

9. Appeal being sans merit is liable to be dismissed and is hereby dismissed.