TaxTMI 
TaxTMI 
2018 (1) TMI 1758
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....ed is that the same direction be passed as passed on 07.08.2013 by a Division Bench of this Court in an appeal FAO(OS) No. 94/2013 filed against the order of a learned Single Judge of this Court dated 26.11.2012 by which the application filed by the plaintiff under Order XXXIX Rule 10 was dismissed. 2. The order of the Division Bench dated 07.08.2013 passed in FAO(OS) No. 94/2013 in the appeal titled as Sanjeev Sarin vs. Rita Wadhwa and Another reads as under:- " After some hearing learned counsel for the respondent No.1/defendant No. 1 submitted that in case of any apprehension, without prejudice to the rights of the said party, a bank guarantee for the sum of Rs.40,00,000/- would be furnished to the Court, to be appropriated in the eve....
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....Delhi. The suit property was admittedly owned by the mother of the parties, namely, Smt. Madhurekha Sarin. Whereas the plaintiff, and who is supported by the defendant no.2/applicant, claims that the mother Smt. Madhurekha Sarin died intestate, the defendant no.1 has set up a Will dated 01.03.1999 of the mother whereby the suit property has been bequeathed to the defendant no.1. 4. The principles with respect to disposal of an application under Order XXXIX Rule 10 CPC have been stated by a learned Single Judge of this Court Hon'ble Mr. Justice A. K. Sikri (as he then was) in the judgment in the case of Harish Ramchandani vs. Manu Ramchandani & Ors., (2001) 91 DLT 480. It has been held in this judgment that for the provisions of Order XXXIX....
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....nding adjudication, with respect to the fact that the plaintiff and defendant no.2 have no ownership rights in the suit property on account of the Will dated 01.03.1999, relied upon by the defendant no.1 to have been executed in his favour by the mother late Smt. Madhurekha Sarin. This aspect is the subject matter of issue no.6 which has been framed in the suit on 02.08.2010. Therefore, allowing of the application would have been possible only if the defendant no.1 would be found to have no title to the suit property and that there was no valid Will dated 01.03.1999 of the mother late Smt. Madhurekha Sarin. 6. As already stated above, there is a live issue which has to be decided in the suit at the stage of final arguments of defendant no.....
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.... defendant no.2 that the order of the Division Bench of this Court dated 07.08.2013 in FAO(OS) No. 94/2013 will furnish a fresh entitlement and cause of action to file the present application, however, I cannot agree because the order of the Division Bench dated 07.08.2013 is not an order passed on merits setting aside the order of the learned Single Judge of this Court dated 26.11.2012 and the order dated 07.08.2013 is effectively only a consent order without touching any aspect on merits of whether the plaintiff was entitled to an order under Order XXXIX Rule 10 CPC. The ratio of the judgment of this Court in Harish Ramchandani (supra) holds that an application under Order XXXIX Rule 10 CPC will not lie unless the facts satisfy the requir....