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Judgment
11 paragraphs · 641 wordsB. Manohar
The appellants are the defendants in O.3. No.3407/2011. Being aggrieved by the exparte order dated: 20.05.2011 passed by the Principal City Civil and Sessions Judge, Bangalore and non consideration of the application filed under Order 39 Rule 4 of CPC for vacating the exparte interim order, the appellants have filed this appeal.
The facts of the case are as follows: The respondents herein filed the suit seeking permanent injunction restraining the second defendant from alienating the suit schedule property in favour of third party without prior permission as required under the Indian Trust Act. Further he also filed an application under Order 39 Rule 1 & 2 of CPC seeking interim order of temporary injunction restraining the defendant No.2 from alienating the suit property to third party.
The Trial Court by its order dated 20.05.2011 granted exparte order of temporary injunction on I.A.I filed under Order 39 Rule 1 & 2 of CPC. Thereafter, the respondents No. 1 & 2 entered appearance and filed their written statement and also an application under order 39 Rule 4 for vacating the exparte order of temporary injunction and also filed another application under Order 7 Rule 11(D) of CPC.
The allegation of the appellants is that though the application for the vacating stay has been filed on 25.06.2011, the same was not disposed off for many reasons. The appellants contended that for nonpayment of loan amount, the property of the appellants was brought to sale. The appellants further contended that they have to pay the huge interest. In view of the non-consideration of application for vacating the interim order, the appellants will be put to hardship and sought for allowing the appeal and to vacate the exparte interim order.
The advocate appearing for the respondents submits that the application filed by the appellants/defendants for vacating the interim order, the matter has been heard on various dates. However, the Trial Court could not dispose of the application filed by the applicant.
After hearing the advocates for both the parties, I am of the view that, under order 39 Rule 3-A of CPC where an exparte injunction has been granted without giving notice to the opposite party, the court shall make an endeavor to finally dispose of the said application within a period of 30 days from the date on which, the injunction order has been granted. In the instant case, the Trial Court by its order dated 20th May 2011 granted an exparte interim order. Immediately after service of notice, the contesting respondents have filed an application under Order 39 Rule 4 of CPC for vacating the exparte interim order. Further another application was filed under Order 7 Rule 11-D of CPC. The said applications have not been disposed of by the Trial Court. Order 39 Rule 3-A of CPC contemplates that the application filed under Order 39 Rules 1 and 2 of CPC has to be disposed of within a period of 30 days. In the instant case, the Trial Court has not disposed of the same within the time specified in the Code of Civil Procedure. Hence, without going to the other contentions urged by the appellants and on the merits of the case, it is appropriate to direct the Trial Court to dispose of the application filed by the appellants within a period of 15 days from today.
Accordingly, I pass the following:
ORDER
The appeal is disposed of with a direction to the Trial Court to dispose of the applications filed under Order 39 Rules 1 and 2, under order 39 Rule 4 and another application filed under Order 7 Rule 11-D of CPC within a period of 15 days from today.
The advocate appearing for the respondents assures the court that he will not seek for any adjournment in the matter.