S.12(2),C.P.C.—Framing of issues before decision of application

2019 C L C 252

S. 12(2) & O. I, R. 10—Specific Relief Act (I of 1877), S.12—Transfer of Property Act (IV of 1882), S. 52—Application under S.12(2),C.P.C.—Framing of issues before decision of such application—Necessity—Saleof suit property during pendency of suit—Lis pendens, principleof—Applicability—Fraud and misrepresentation—Proof—Decree, settingaside of—Decision of application under S. 12 (2), C.P.C. without framing ofissues—Effect—Applicant during pendency of suit purchased suit property andmoved application for impleadment of defendant but same was dismissed—Suitwas decreed and sale deed was executed in favour ofdecree-holder/petitioner—Applicant applied for setting aside of said decree butsame was dismissed by the Trial Court—Appellate Court remanded the matter todecide the same after framing of issues and recording evidence of theparties—Validity—Suit was filed on 20-04-1990 and applicant purchased suitproperty on 19-05-2003—Principle of lis pendens was applicable and applicantcould not be impleaded as party in the main suit—Court was not bound to frameissues in each and every case before deciding an application under S.12(2),C.P.C. rather it could decide such application without framing of issues whileconsidering material made available on the record—Mere allegation of fraudand misrepresentation was not sufficient to undo the judgment of a court ofcompetent jurisdiction—Party who had asserted fraud and misrepresentation hadto bring on record cogent and plausible material in order to substantiate hissuch plea which was lacking in the present case—Revisional Court had erred inlaw while setting aside order passed by the Trial Court thus had committedillegality culminating into passing of an order which was perverse andperfunctory—Impugned order could not be allowed to hold the fieldfurther—High Court was competent to exercise its constitutional jurisdictionin circumstances—Impugned order passed by the Revisional Court was set asideand that of Trial Court was restored—Constitutional petition was allowedaccordingly.

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