1995 (9) TMI 411

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.... 2 of the Code of Civil Procedure restraining the defendants from dealing with the properties and also against the subsequent purchaser in whose favour sale deed is subsequently executed. It appears that the trial Court initially granted ex parte injunction, but after hearing the respondents defendants and after taking into consideration the various legal submissions raised in the written statement, found that injunction as prayed for could not be granted firstly because the agreement to sale dated 9th of November, 1992 was not registered as required under law and therefore it would not create any right in favour of the purchaser to institute suit for specific performance of such agreement. The said agreement to sale is produced at Exh. 1/4....

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....settled by the Division Bench of this Court, the Trial Court was in error in holding that it would not act upon such agreement of sale. 4. The second reason given by the trial Court that unless the relief is prayed against the subsequent purchaser for setting aside sale in their favour, the plaintiff cannot succeed against the subsequent purchaser and no injunction as prayed for could be granted also appears to be illegal and untenable because the position of law is well settled as back as 1954 by the decision of the Apex Court in the case of Durga Prasad v. Deep Chand, reported in [1954]1SCR360 , wherein Justice Vivian Bose speaking for the Apex Court took the view that when a suit is filed for specific performance by prior purchaser ag....

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....material on record but on the Wrong premises of law and therefore the same is required to be quashed and set aside. At the same time since relevant documents on which both the parties rely are not considered in proper perspective by the trial Court so as to reach a finding as regards prima facie case, this Court is of the opinion that it is a fit case where the matter should be remanded to any other Civil Judge, S.D. posted at Bhavnagar to decide Exhibit-5 in accordance with the observations made in this judgment. The District Judge, Bhavnagar is directed to assign this particular suit to any other Civil Judge, SD excepting R.S. Timbaliya. Copy of this judgment is also directed to be sent down to all Civil Judges, S.D. at Bhavnagar so that ....