Hemant Gupta, J. - (1.) THE challenge in the present revision petition is to the order passed by the Courts below on an application filed by the petitioners under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, restraining the defendants from getting the property in suit auctioned during the pendency of the suit. The said application was dismissed by the learned trial Court on 27.7.2002. The appeal against the said order was also dismissed on 17.8.2002.
(2.) THE plaintiff -petitioners filed a suit for declaration that plaintiffs and defendant No. 3 are owner in possession of the equal shares in the building of cold storage along with machinery, factory and other superstructures existing on land measuring 8 bighas and for decree of permanent injunction restraining defendant No. 1 from getting the auction proceedings conducted from the Debt Recovery Tribunal. The said suit was filed on the ground that the plaintiffs have purchased the property vide registered sale deed dated 29.10.1971 in equal shares with defendant No. 3. Earlier the plaintiffs and defendant No. 3 constituted a partnership and the land was mortgaged to the Punjab Financial Corporation but vide deed dated 24.4.1991, the partners have decided to dissolve the partnership firm with effect from 31.3.1991. According to the terms of dissolution, the business of cold storage along with land, building and machinery was given to defendant No. 3 but the ownership in the land building, machinery was to remain in the name of all the three partners in equal shares. It is further stated that defendant No. 3 was given the option that he could purchase the same at a market price within four years of dissolution of the firm. The plaintiffs and defendant No. 3 entered into an agreement dated 4.10.1994 and the price of the land building and machinery was fixed at Rs. 90.00 lacs with the result that the share of the plaintiffs and defendant No. 3 was fixed at Rs. 30.00 lacs each. The plaintiffs executed a sale deed on 24.1.1994 in favour of defendant No. 2 M/s Toor Farms Pvt. Ltd. But the balance amount of Rs. 30.00 lacs is still payable to the plaintiffs and on such payment, the plaintiffs are to transfer rights in favour of defendant No. 3. It is further claimed that the amount of Rs. 30.00 lacs was payable in a period of three years and if not paid, interest @ 12% p.a. would be payable.
(3.) M /s Toor Farms Pvt. Ltd. defendant No. 2 has taken financial loan to run cold storage and had mortgaged the land so purchased from plaintiffs and defendant No. 3 on 1.8.1995. The Bank has obtained Recovery Certificate on 8.9.1998 to recover a sum of Rs. 38,99,753.26 from defendant Nos. 2 and 3 under the provisions of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Since the plaintiffs have neither signed any document of loan nor had consented the same therefore, the property could not be sold in pursuance of the Recovery Certificate issued against defendant Nos. 2 and 3. The objections filed by the petitioners before the Debt Recovery Tribunal, were dismissed on 19.2.1999. The appeal against the said order was also dismissed as not maintainable by the Debt Recovery Appellate Tribunal on 3.4.2000. The Tribunal found that the remedy of the plaintiffs is to file a civil suit to establish their right, title or interest. The operative part of the order dated 3.4.2000, reads as under: - Having regard to the aforesaid provisions and when the appellants were not party to the original proceedings. 1 find that their remedy is to file civil suit to establish their right, title and interest and not by way of this appeal. Accordingly, this appeal is dismissed as not maintainable with liberty to appellants to file civil suit. Interim order is vacated.;