Ram Chand Gupta, J. - (1.) THE present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside the impugned order dated 10.8.2010, passed by learned lower appellate Court, Annexure P2, vide which order dated 28.4.2006, passed by learned trial Court, Annexure P1, was set aside by accepting the appeal.
(2.) I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned orders passed by learned Courts below. Facts relevant for the decision of present revision petition are that admittedly Respondent -Defendant mortgaged land measuring 18 kanals 17 marlas as described in the heading of the plaint with present Petitioner -Plaintiff for mortgaged money of Rs. 31,000/ -, vide registered mortgage deed dated 14.6.1989. It has also not been disputed that Respondent -Defendant filed an application for redemption of said mortgage before the competent authority. Learned Sub Divisional Magistrate -cum -Collector, Hoshiarpur, vide his order dated 23.2.2006 allowed the application for redemption. Before learned Collector, the plea was taken by present Petitioner that later on some other amount was given by him to Defendant, i.e., a sum of Rs. 1,28,000/ -, as a security for the same mortgaged property. However, the plea was not accepted by learned Collector. The application was allowed by the Collector vide order dated 23.2.2006 and the land in dispute was ordered to be redeemed on payment of Rs. 31,000/ -. There is no dispute that the said amount was deposited by Respondent -Defendant in view of the said order. Execution petition was filed by Respondent -Defendant for taking possession pursuance to that order and the same is pending before the competent Court. Learned trial Court granted ad interim injunction in favour of Petitioner -Plaintiff restraining Respondent -Defendant from dispossessing him from the property in dispute, however, on appeal filed by Respondent -Defendant, the said order was reversed and the application for ad interim injunction order under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by present Petitioner -Plaintiff was dismissed, by observing as under: 13. Defendant has made his full signatures i.e. "Joginder Singh" on the original mortgage deed dated 14.6.1989. the pronote and the two agreements bear signatures of Defendant as "J Singh." A bare look at the pronote and the two agreements shows that these documents are not signed by the Defendant. It appears that Plaintiffs are out to retain possession of the suit land and to resist delivery of possession of the suit land to the Defendant. Plaintiff is trying to take advantage of the fact that he is in possession of the suit land. Plaintiff could pursue his independent remedy on the basis of pronote and two agreements, if any, available to him under law. The amounts alleged to be borrowed by the Defendant after 14.6.1989 cannot form part of mortgage money. 14. The learned trial Court granted ad -inter injunction solely on the ground that Plaintiff has a right to challenge the order dated 23.2.2006 by way of filing of a separate suit and if he is dispossessed, he will suffer irreparable loss. In the opinion of this Court, no prima facie case was made out in favour of the Plaintiff for the reasons already stated above. The balance of convenience also did not lie in favour of Plaintiff. Plaintiff is not going to suffer any irreparable loss or injury, if he is dispossessed during the pendency of the suit. If Plaintiff otherwise succeeds in the suit, he can always ask for restoration of possession. The mortgage money of Rs. 31,000.00 stands already deposited by Defendant. The order of redemption has been passed in his favour and his application for delivery of possession is pending before competent authority. Defendant has been deprived of his right to come into possession of land owned by him since the year 2006.
(3.) IT has been vehemently contended by learned Counsel for the Petitioner -Plaintiff that learned first appellate court should not interfere in the discretion exercised by the court of first instance and substitute its own discretion. He has also placed reliance upon Wander Ltd. and Anr. v. Antox India P. Ltd. : 1990 (Supp) SCC 727.;