A.P. Sen,J. - (1.) This appeal under Order XLIII rule 1(r) of the Code of Civil Procedure filed by Smt. Mohini Devi, is directed against an order of the Additional District Judge No. 2, Jodhpur, dated 19 -2 -1977, who while allowing her application under Order XXXIX rule 1 of the Code for grant of a temporary injunction, imposed certain conditions.
(2.) The facts leading to the appeal, in brief, are as follows. The respondent, viz., the Rajasthan State Financial Corporation, Jaipur (hereinafter referred to 'the Corporation') made an application under Sec. 31(1) of the Rajasthan State Financial Corporation Act, 1951, for the recovery of the mortgage amount of Rs. 4,78,866.66 due under the mortgage deed dated 27.1.1971 executed by the appellant's brother Budhmal. He borrowed three amounts under the mortgage deed, viz, Rs. 1,00,000/ - on 16.12.64, Rs. 78,000/ - on 5 -4 -1968 and Rs. 1,06,000/ - on 19 -9 -1970 for the construction of a multi -storeyed hotel. The Corporation obtained a decree for Rs. 4,78,866.66 on 22.10.1975 from the Court of District Judge, Jodhpur, against the legal representatives of Budhmal, for the recovery of the amount due by sale of the mortgaged property.
(3.) While the case filed by the Corporation was pending, the appellant on 23 -5 -1973 applied under Order XXXIII rule 1 of the Code of Civil Procedure for leave to file a suit in forma pauperis. In the suit, she claimed a declaration that half the house belongs to her in as much as the property was owned by her father Radha Kishan, who purchased the house together with the land near Sojatigate for Rs. 8,750/ - by a registered sale deed dated 12 -6 -22. She alleged that though the sale deed was in the name of her father Radha Kishan and brother Budhmal, her brother was mere 'benamidar', as he was only 9 years old at the time of purchase. She, however, admits that the 'patta' in respect thereof was granted by the 'Darbar' on the basis of the sale deed. Radha Kishan died on 26.5.1961 leaving behind him his widow Gavaribai, son Budhmal, and daughter Mohini Devi. Smt. Gavaribai died on 27.1.1968. In the circumstances, the appellant Smt. Mohini Devi alleged that she and her brother Budhmal became owners of the house, each having one half share therein under the Hindu Succession Act, 1956, and therefore her brother Budhmal had no right to mortgage the entire property and consequently, the mortgage decree was not binding on her half share.;