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Anonymous
Asked August 10, 2016

Exparte Orders, Stay Orders and Suits related to Property

  • 1 Answer
  • 574 Views

Dear Sir/Madam High court has passed a Interim injunction restraining the respondent from alienating the Suit property untill the disposal of main suit. The respondent is Title owner of the property with All relavent documents and got the property via a settlement deed from his father Mr X (only daughter). This property is not an ancestral property and was a joint family property which was partitioned by Court and settled on Mr X name and he has been an absolute owner of the property for several years...later he made a settlement of the property to his daughter via a gift deed. now some third party Mr.Y who claims that he is the son of the first wife of Mr X (shows up after 30 years) and he executed a sale deed to some local goondas claiming he has got rights on the property (welcome to TN registration dept) the registrar took bribe and executed the sale deed with out checking the title ownership, Encumbrance cert, Patta, parent document etc. On top of this, Mr Y filed a Suit in district court claiming that he has share on the property. now when the Respondent Mr X daughter is trying to Sell the property, Mr Y has approached the High court and got a Interim Injunction (by Ex partee) restraining respondent from alienating the suit property. They are not sure of a Private notice was served to them. but the order was passed as Ex partee Question: 1. Can this Stay order be vacated by challenging it. as the respondent have all relavent and legal documents to prove her ownership. 2. Is there a Prima facie in this case to issue an Injunction? 3. If challenged, will the high court look in to the merits and vacate the injunction or just dispose teh challenge by saying let the lower court decide the main suit. 4. Can the respondant build a house in the suit property atleast if not able to sell off Please help.

Answer 1

Default avatar
Saurabh Kumar

With regards to question number 1-

You can file an application for urgent hearing of the matter, or whenever next listed to request the court for fast disposal, bringing before the court your financial requirements.  It is recommended to abide with the orders of the court, else you will attract contempt of court proceeding that will be initiated against you.  You can file an application for vacation of stay by stating that you have all the relevant documents and thus call for an urgent hearing of the matter.  

With regards to question number 2-

 

When Sections 64 and 65 of the Limitation Act, are read with Section 27 of the Transfer of Property act, the time period to raise such a dispute is 12 years AFTER you have been wrongfully disposed of the property in question, this is legal terms is called “adverse possession”.  In this case, if it took him more than 12 years to raise this dispute after his so called genuine right over the property was passed to the daughter of Mr X, then he is under limitation to file a suit as the time period under the Limitation Act and Transfer of Property Act is now over.  Thus, in that case, the injunction will most likely fail.  

With regards to question number 3-

There are two types of mistakes which can force higher courts like the High Courts of states and the Supreme Court, to over-turn the decision of lower courts. The first is mistake of fact and the second is mistake of law.

If there is a mistake of fact, then cases are sent back to lower courts.

If it is a mistake of law, then higher courts dispose the case as they deem fit.

 

In your case, facts are in greater dispute than the laws itself. Thus, in my opinion, the case, in greater likelihood will be sent back to the lower courts for reference.

With regards to question number 4-

 

As stated in question number one, you CANNOT  do anything on the disputed property as stay orders mean TOTAL STOPPAGE of any activity with regards to or on the property till the suit is disposed off. Thus, in my opinion it is recommended to abide with the orders of the court, else you will attract contempt of court proceeding that will be initiated against you

Agree Comment 0 Agrees over 1 year ago

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