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Balram Prasad vs State of U.P. and Others

Allahabad High Court · Decided on 19 March 2002 · Citation: (2002) 2 AWC 1246 : (2002) 2 UPLBEC 1008

HON’BLE JUDGES
Rakesh Tiwari, J · M. Katju, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 39 Rule 2 · Constitution of India, 1950 — Article 226
RESULT
Dismissed
CASE NUMBER
C.M.W.P. No. 11670 of 2002
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Judgment

4 paragraphs · 362 words

M. Katju and Rakesh Tiwari, JJ.—Heard learned counsel for the petitioner and learned standing counsel. The petitioner took a loan from the State Bank of India under the Prime Minister Rozgar Yojana in respect of which the impugned recovery has been issued.

2.

In our opinion, writ petitions relating to recovery of loans should not ordinarily be entertained by the High Court and instead, the party should approach the civil court in a civil suit challenging the said recovery because such matters usually involve questions of fact for which this Court under Article 226 of the Constitution of India is not the appropriate forum. We may clarify that in such a civil suit challenging the recovery, a temporary injunction can also be granted. The Amendment to Order XXXIX, Rule 2, C.P.C., by which a proviso has been inserted in U. P. State in Clause (g) that the Court cannot stay proceedings for the recovery of any dues recoverable as land revenue ''unless adequate security is furnished''. This means that even if there are proceedings for recovery of any dues recoverable as land revenue, the same can be stayed by a temporary injunction order under Order XXXIX. Rule 2. C.P.C., by furnishing adequate security. Of course, if the recovery is not recoverable as land revenue, then the bar of Order XXXIX. Rule 2, C.P.C. as amended does not apply at all, and hence in such cases also, recovery can be stayed even without furnishing security. Hence in either case, the party may apply for a temporary injunction by approaching the civil court if the facts of the case so justify.

3.

At one time such types of writ petitions against recoveries used to be filed very rarely but now this Court is flooded with such types of petitions against recovery matters, and often questions of facts are involved for which this Court is not the suitable forum. Hence, we lay down as a general rule that in recovery matters, this Court will not ordinarily interfere under Article 226 and the petitioner will be relegated to his alternative remedy before the civil court.

4.

For the reasons given above, this writ petition is dismissed.