NOORBIBI MIYA MOHMAD IBRAHIM Vs. MOHMADSALIM MIYA MOHMAD

JUDGEMENT

(1.) RULE. Mr. Harshad Patel, learned Advocate waives service of rule on behalf of respondent No. 1. Mr. Shirish Joshi, learned Advocate waives service of rule on behalf of respondent Nos. 2 and 3. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today.

(2.) BY way of this petition under Article 227 of the Constitution of India, the petitioners original plaintiffs have prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 21. 10. 2004 passed by the learned Civil Judge, (S. D.), Bharuch below Exh. 5 in Regular Civil Suit No. 259 of 2004 as well as the judgment and order dated 07. 04. 2005 passed by the learned Assistant Judge, Bharuch in Civil Misc. Appeal No. 95 of 2005 in dismissing the same and confirming the order passed by the learned trial Court below Exh. 5.

(3.) DISPUTE is with respect to properties bearing City Survey Nos. 2540/4, 2540/5, 2540/6 which admittedly belongs to original plaintiffs and defendant No. 1. It appears that original plaintiffs executed one power of attorney in favour of defendant No. 1 for administration and management of the said properties. However, defendant no. 1 misused the said power of attorney and power conferred under the said power of attorney. Co-owner original defendant No. 1 took loan of Rs. 15 lacs from respondent No. 2 Bank. Lavad suit came to be filed against original defendant No. 1 and decree came to be passed and pursuant to the said decree, said properties were to be auctioned and at that stage original plaintiffs filed Regular Civil Suit No. 259 of 2004 for declaration and permanent injunction contending inter-alia that their properties cannot be auctioned as they have not taken loan / finance and that defendant No. 1 has taken loan on the said properties by misusing power of attorney and beyond power given under the said power of attorney. In the said suit, the petitioners original plaintiffs submitted Exh. 5 for interim injunction. Considering clause 7 and interpreting power of attorney, the learned trial Court dismissed the application Exh. 5 refusing to grant interim injunction by holding that defendant no. 1 was given General power of attorney and therefore, he could have sold and/or taken loan / finance on the said properties. Being aggrieved and dissatisfied with the said order passed by the learned trial Court below Exh. 5, the petitioners preferred Civil Misc. Appeal No. 95 of 2004 before the learned Appellate Court and same came to be decided and disposed of by the learned Assistant Judge, Bharuch who by judgment dated 07. 04. 2005 dismissed the said appeal and confirmed the order passed by the learned trial Court passed below Exh. 5. Being aggrieved and dissatisfied with aforesaid orders passed by the Courts below, the petitioners have preferred the present Special Civil Application under Article 227 of the Constitution of India.