By means of this writ petition the petitioners have challenged the order of the appellate court passed under Order XLIII Rule 1(R) CPC in appeal filed against the rejection of interim injunction application under Order XXXIX Rule 1 and 2 CPC filed by the defendant-respondent in Suit No. 383 of 2013 for cancellation of sale deed.
The petitioners submit that the sale deed was duly executed in favour of petitioner nos. 2,3 and 4 by petitioiner no.1 holding power of attorney by the respondent . The respondent filed a suit for cancellation of this sale deed stating that the power of attorney obtained by petitioner no.1 was upon playing fraud and he never executed such power of attorney and, therefore, the Power of Attorney in favour of petitioner no. 1 be cancelled. The trial court rejected the application holding that the Power of Attorney was a registered document and no presumption can be drawn against a registered document. However, in appeal the appellate court set aside the order of the trial court and has granted injunction in favour of the plaintiff-appellant.
Learned counsel for the petitioners submits that the petitioners are the bona fide purchaser. After verifying the document and at the time of execution of sale deed no objection was ever raised by any one. It is only when the petitioners came into possession the aforesaid suit has been filed.
It is not disputed that the sale deed was executed by the holder of power of attorney which is also a registered document. Learned counsel for the respondent, however, submits that the expert has opined that the thumb impression of Power of Attorney does not match with that of the executor of the Power of Attorney.
The matter requires consideration.
Sri R.L.Chaudhary, learned counsel appears on behalf of the respondent. He may file counter affidavit within three weeks.The petitioners shall have one week thereafter to file rejoinder affidavit. List thereafter.
Till the next date of listing, the operation of the impugned order dated 19.5.2014 shall remain stayed. It is further provided that the petitioners will not alienate the property nor create any third party interest over the same till the next date of listing.
Order Date :- 17.7.2014 SKM