The High Court restrained defendants from raising further construction over the disputed property pending final disposal of the trial court application, setting aside the lower court's refusal to extend the status quo order despite pendency of the first appeal.
Restraint from raising construction; Trial court to decide application within 20 days.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No. 1336/2022
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----Respondents
For Appellant(s) : Mr. JK Bhaiya For Respondent(s) : Mr. SS Rajpurohit
HON'BLE MR. JUSTICE FARJAND ALI Order
17/08/2022
The instant appeal has been preferred against the order dated 05.08.2022 passed by the learned Additional District Judge, Nokha, District Bikaner in Civil Misc. Case No. 234/2021 whereby the learned trial Court has declined to extend the interim order which was earlier in currency.
Learned counsel for the appellants submits that the suit for partition was decreed in favour of the appellants vide order dated 24.01.2020. No appeal was preferred by the defendants for a long time and the process for final decree was underway. In the meantime, the defendants had started raising construction over the disputed site, therefore, an application came to be moved on behalf of the decree holder/applicant/appellants before the learned trial Court to restrain the defendant/judgment debter/non-applicant from raising construction over the property in question.
The learned trial Court after hearing the counsel for the parties had passed an order dated 10.11.2021 restraining the defendants/judgment debter/nonapplicant from raising any construction and to maintain
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the status quo of the property as well. The said order had been extended from time to time. Thereafter, the defendants preferred an appeal against the preliminary decree by way of filing a Civil First Appeal before this Court. An ad interim order had also been passed therein. However, vide order dated 22.07.2022, passed in Civil First Appeal No. 47/22, the ad interim order had been vacated and the trial Court had been directed to proceed in the matter in accordance with law.
It is vehemently urged that after the aforeasaid vacation of ad interim order passed by this Court vide order dated 22.7.2022, the decree holder/applicant again moved an application before the trial Court to restrain the defendants from raising further construction at the property in question but the learned trial Court has declined to restrain the defendants vide impugned order dated 05.08.2022 which has been assailed herein by way of filing the present Civil Misc. Appeal.
Learned counsel Mr. SS Rajpurohit has put in appearance on behalf of the respondents. It is urged on their behalf that the property was in a dilapidated and shabby condition, therefore, in view of the current climatic situation and regular precipitation, there was an urgent need of maintenance, therefore, they may be allowed to continue construction over the site. It is further submitted that the Civil First Appeal is pending consideration before this Court against the preliminary decree and any order in this appeal may adversely
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influence the interest of the parties since final decree has not been prepared yet.
Heard learned counsel for the parties and perused the material available on record.
Considering the overall submissions made by learned counsel for the parties and after perusal of the material available on record, this Court deems it appropriate to restrain the defendants from raising further construction over the property in question. The learned trial Court shall finally decide the Civil Misc. Application No. 234/2021 within a period of twenty days from the date of receipt of this order. This order shall remain in currency till final disposal of the aforementioned Misc. Application No. 234/2021 and it shall not influence the rights and the interest of the parties in any manner in the course of appeal or before the learned trial Court.
The appeal is disposed of accordingly.
(FARJAND ALI),J
84-Arti/-
1 issue framed by the court
Whether the High Court should intervene to restrain defendants from raising construction pending final disposal of the trial court application and while the first appeal is sub judice.
Kamla Devi W/o Late Shri Ram Singh
Shyam Singh S/o Late Shri Ram Singh
Vijay Singh S/o Late Shri Bheraram
Raju Singh S/o Late Shri Jagdish Singh
Farjand Ali
As recorded by the court registry
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