C.R. No.459 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.459 of 2007 Date of Decision.19.10.2011 Rajwinder Singh minor son of Dilbar Singh son of Gurdev Singh r/o Thikriwala, Tehsil and District Barnala, through Court Guardian Manjit Kaur Advocate .....Petitioner Versus Som Parkash s/o Chet Ram and another .....Respondents Present: None. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. 1. The revision petition is filed by the petitioner, the 2nd defendant in suit, against the order directing status quo regarding the suit land till the disposal of the suit. The petitioner was a minor son of the 1st defendant. The plaintiff's suit was for recovery of money due under a promissory note said to have been executed by the 1st defendant. During the pendency of the suit, he filed an application for interim attachment of the property described in the suit and also for restraint against alienation of the property. The 2nd defendant was made as a party in the suit only because the 1st defendant appears to have caused a mutation of revenue entry in relation to the property that stood in his name in the name of his minor son. This, according to the plaintiff, was with an intent to defeat and delay the right of recovery of the amount in the event of the suit being decreed. 2. The 2nd defendant appearing through the mother and guardian C.R. No.459 of 2007 -2- had contended that property did not belong to the 1st defendant and if the property stood in the name of the 2nd defendant, there could be no fetter for alienation at the instance of the minor, who was not a party to the alleged transaction of loan contracted by his father. The trial Court had accepted the contention and dismissed the application filed by the plaintiff. In appeal, the Additional District Judge set aside that order and granted the relief of retention of status quo and held that the property shall not be sold during the pendency of the proceedings. It is against this order that the 2nd respondent in the application is in revision. 3. This case has been posted for immediate disposal by the orders of the Acting Chief Justice since the trial of the case could be stifled by the pendency of the civil revision petition. 4. It is not very clear as to why 2nd defendant-petitioner is made as party in the suit, if the suit is only for enforcement of money claim. There could have been no personal liability of the 2nd defendant- petitioner, who is not party to the loan transaction. However, if it were to be contended by the plaintiff that the principal borrower has caused the transfer of revenue entry in favour of his minor son only to defeat and delay the recovery, it would only be appropriate that in the event of execution by bringing the property to sale, it would be open for the plaintiff to contend that the mutation had been effected only with the intent to defeat and delay the process. There can not be a pre-judged opinion of whether the property has been mutated in favour of 2nd defendant only to delay the recovery of the amount by the plaintiff. If there had been no proof prima facie as to how the property came to be transferred in the name of the minor son through a revenue entry, it was only equitable that the Court allowed for a retention of status quo and C.R. No.459 of 2007 -3- caused a restraint of alienation of the property that stands entered in the revenue records in the name of minor son of the 1st defendant. Normally, there cannot even be a transfer of the property in the name of the minor without appropriate sanction from the Court under the Guardian and Wards Act or Hindu Minority & Guardianship Act. If the Appellate Court had, therefore, directed that the property shall not be alienated during the pendency of the proceedings, I would hold that the Court had correctly exercised the discretion when it found no real basis about how such a mutation had taken place. I do not think there is any need for interfering with the order. However, the restraint order made by the Appellate Court shall not be taken as constituting any final adjudication on the right of the 1st defendant over the property or a final adjudication that the property does not belong to the 2nd defendant. It will be left to an independent adjudication at an appropriate time when if at all, the plaintiff secures a decree and seeks enforcement of the amount by proceedings against the property standing on the name of the 2nd defendant. The 2nd defendant is also at liberty to contend that the property belongs exclusively to him and that the liability that may arise by a decree that could be passed cannot be enforced against the said property. 5. Reserving to the petitioner such a liberty to take up the defence at the appropriate stage in execution, the revision petition is dismissed. (K. KANNAN) JUDGE October 19, 2011 Pankaj*