Court No. - 34
Case :- FIRST APPEAL FROM ORDER No. - 1004 of 2018 Appellant :- M/S C. L. Yadav Cold Storage Respondent :- Ram Gopal and others Counsel for Appellant :- Abhay Raj Yadav,Anuruddh Chaturvedi Counsel for Respondent :- Bhole Ram
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. This is plaintiff's First Appeal filed under Section 104 read with Order 43 Rule 1(r) C.P.C. arising from order dated 28.11.2017 passed by Sri Ramvilas Prasad, Civil Judge (Senior Division), Kannauj rejecting appellant's application 6-C and declining to grant ad-interim order under Order 39 Rule 1 and 2 C.P.C.
2. Court below has found that property mortgaged to the Bank, which was auctioned and purchased by appellant was of lesser area then what was actually taken in possession by appellant. Total area of 2.9116 acre (1.178 hectare) was mortgaged but actual land which was taken within the boundary of Cold Storage was measured as 2.209 hectare and, therefore, actual possession taken is more than the mortgaged land. Therefore, Court below has found that appellant being in possession of more than auctioned land, hence neither any prima facie case is made out nor balance of convenience and irreparable loss is in faovur of appellant. Learned counsel for appellant contended that this finding is based on misreading of document, but record shows that property, which was auctioned by Bank, is described on page 38 of Paper-Book and reads as under:
“1. Arazi no. 3123 total Area 2.42 Acres of which ¼ share measuring 0.605 Acres situated at Village Thatiya, Tehsil Tirwa, District Kannauj.
2. Arazi no. 3123-M total Area 2.42 Acres of which ½ share of ¾ total 3/8 share measuring 0.9075 Acres situated at Village Thatiya, Tehsil Tirwa District Kannauj.
3. Arazi no. 3123 total Area 2.42 Acres of which ½ share of ¾ total 3/8 share measuring 0.9075 Acres situated at Village Thatiya, Tehsil Tirwa, District Kannuaj.
4. Arazi no. 3124 total Area 3.01 Acres of which 1/3 share of 1/2 measuring 0.5016 Acres situated at Village Thatiya, Tehsil Tirwa District Kannauj.”
Total Land- 2.9216 Acres
3. Total Land in possession which has been measured by Sub-Divisional Magistrate as per Report dated 03.06.2017 is 2.201 hectare and appellant, it appears that did not move any application before Court below for measurement of land within the boundary of Cold Storage afresh. Hence, we do not find that any prima facie case was made out and Court below has rightly rejected appellant's application.
4. No other point has been argued. The appeal lacks merits. Dismissed at the stage of hearing under Order 41 Rule 11 C.P.C.
Order Date :- 28.2.2018 PS