Dismissed

H.K. Agarwal v. Smt. Mona Agarwal and Ors.

Uttarakhand HC4 Apr 2019FA/76/2007

Case brief

AI extract

What is this about?

The court rejected a miscellaneous application seeking clarification of its earlier order dismissing a First Appeal regarding a permanent injunction, holding that such an application cannot be used to review the judgment under Section 96 CPC when the appeal has already been adjudicated.

What did the court decide?

The application was rejected as it sought to review a judgment already adjudicated under the garb of a miscellaneous application.

H.K. Agarwal Vs Smt. Mona Agarwal and Ors. — Property and Title | Uttarakhand HC (2019)

¶1

MCC No. 439 of 2019 In FA No. 76 of 2007

¶2

Hon’ble Sharad Kumar Sharma, J.

¶3

Mr. V.K. Kohli, Senior Advocate assisted by Mr. Manoj Kohli and Mr. Kanti Ram Sharma, Advocates for the appellant.

¶4

Mr. Jeevesh Nagrath, Advocate with Mr. Siddhartha Sah, Advocate for respondent No. 2.

¶5

This present First Appeal was preferred by the appellant being aggrieved against the judgment dated 7^th August, 2007, as rendered by the Civil Judge (Senior Division), Dehradun in Suit No. 500 of 1994, Shri H.K. Agarwal Vs. Smt. Mona Agarwal, wherein, in the suit, in question, the relief sought was for the grant of decree of permanent injunction, which was dismissed by the learned Trial Court.

¶6

Simultaneously, when the Appeal was pending consideration, there was also a case filed for partitioning of the property, in dispute, and also there have been other simultaneous proceedings for grant of probate of the will dated 3^rd September, 1984, which was considered and decided in Probate Case No. 55 of 1992, Shri Prem Narain Agarwal Vs. State and others. Consequently, the probate case stood dismissed as withdrawn and, ultimately, the parties to the proceedings have instituted a suit, being suit for partition, which was pending consideration before the Trial Court.

¶7

Hence, this Court vide its judgment dated 04.04.2019, held that during the pendency of the partition suit, where the shares of the parties to the Appeal were yet to be settled, the continuance of the First Appeal, in question, where the issue involves for the grant of permanent injunction could absolutely be a futile exercise until and unless their rights stands settled in pursuance to the decree to be granted in the partition suit, which is pending consideration inter se between the parties.

¶8

Consequently, the Appeal was closed and it was directed that since the right and the extent of shares are yet to be determined by the Civil Court, hence, in view of Section 44 of the Transfer of the Property Act, it would adhere to the stipulations which are contained under Section 41 of the Transfer of the Property Act, accordingly, the Appeal was disposed of subject to the observations made in the order dated 04.04.2019.

¶9

Subsequent thereto, the matter has been listed on an Application, which has been submitted by the appellant, being Misc. Application No. 439 of 2019, wherein, the appellant had sought a clarification with regard to the order dated 04.04.2019, passed in the instant First Appeal.

¶10

This Court is conscious of the fact that the civil proceedings are specifically governed by the provisions which are stipulated under the CPC and once a judgment has been rendered in regular First Appeal under Section 96 of the C.P.C., its propriety cannot be sought to be modified subsequently by virtue of Misc. Application and that too when application is silent as to under which provisions the said application has been filed.

¶11

Hence, considering the direction which has been given therein and the clarification which has been sought under the garb of the application dated 7^th May, 2019, cannot be permitted to be carried once the appeal itself has been adjudicated on 04.04.2019 because it would tantamount to reviewing of an order under the garb of the Misc. Application No. 439 of 2019, which is not permissible under the procedural law.

¶12

Thus, the Application is misconceived and is accordingly rejected.

¶13

(Sharad Kumar Sharma, J.)

¶14

Dated 02.07.2019 Shiv

H.K. Agarwal v. Smt. Mona Agarwal and Ors.

Case brief

What is this about?

What did the court decide?

H.K. Agarwal v. Smt. Mona Agarwal and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Govind Singh Bisht and Others Vs Umesh Kabadwal and Another

Mani Pushpak Joshi Vs State of Uttarakhand

Niraj Mishra Vs State Of Uttarakhand and Others

Durgesh Kumar Vs Ashok Kumar

Harish Chandra Singh Rawat Vs State Of Uttarakhand and Others

K.k. Singal Vs State Of Uttarakhand and Others