PREM CHAND Vs. RAM PRASAD & ORS

JUDGEMENT

(1.) The present appeal has been filed by the appellant against the order dated 26.04.2016 passed by the Additional District Judge, Parbatsar in Misc. Case No. 59/2015 whereby, the application filed by the respondent plaintiff under Order 39, Rule 1 & 2 CPC has been partly allowed.

(2.) Respondent No.2 has filed caveat in this matter and has raised preliminary objections to the maintainability of the appeal filed on behalf of appellant and it is argued that firstly, the stay application has been filed under provisions of Order 41, Rule 5 Code of Civil Procedure whereas, the Order 41, Rule 5 Code of Civil Procedure is applicable only in cases where the decree was passed by the learned trial court whereas, present appeal has been filed feeling aggrieved against the order passed on application under Order 39, Rule 1 & 2 CPC. Secondly, it is argued that respondent no.3 Akhil Bhartiya Dayma (Dadich) Brahmin Mahasabha (hereinafter referred to as 'Mahasabha ') is registered under the Societies Registration Act and as per constitution, the Mahasabha can only be represented by General Secretary and all legal proceedings can be initiated on behalf of General Secretary and present appeal has not been filed by General secretary of Mahasabha, therefore, the same is not maintainable. It is further argued that the election committee has been constituted and election programme has also been announced and in pursuance of election programme, voter list has also been published and while relying upon the judgment of Hon 'ble Supreme Court in the case of Shaji K. Joseph Vs. V. Viswanath & ors (Civil Appeal No. 1629/2016), it is submitted that once the election process starts, it would not be proper for the Courts to interfere with the election process.

(3.) Per contra, counsel for the appellant submits that the appellant is holding the post of Treasurer of the Mahasabha and remained party to the litigation, therefore, he is very much entitled to file the present appeal.