H.P. Sandesh, J
1. Heard the learned counsel for the appellants.
2. Learned counsel for the appellants would submit that the Trial Court while allowing the application-I.A.No.2 filed by the plaintiffs under Order 39, Rule 1 and 2 read with Section 151 of C.P.C. imposed the condition directing the plaintiffs to give undertaking to compensate for injury or loss that would cause defendant No.2 in case, the plaintiffs fail to get the relief of partition and declaration as prayed in the suit. Learned counsel for the appellants would contend that imposition of said condition would cause prejudice to the right of the plaintiffs and hence, the said condition has to be modified. Learned counsel for the appellants not disputes the other observations made by the Trial Court that the order will not bind on the defendant No.18 with whom the defendant No.2 has already obtained loan by creating mortgage.
3. Having considered the grounds urged, defendant No.2 has already obtained loan from defendant No.18 by mortgaging the property and suit is filed for partition and separate possession by the plaintiffs and the condition imposed by the Trial Court is that, if the plaintiffs are unsuccessful in getting the relief of partition and declaration, they have to compensate for injury or loss that would cause to defendant No.2. The fact that defendant No.2 had availed loan from defendant No.18 is taken note by the Trial Court. The Trial Court has also taken note of the nature of the suit filed by the plaintiffs and relief is granted restraining the defendant No.2 from alienating the suit schedule property in favour of third parties, pending disposal of the suit.
4. In view of suit being filed, an order of temporary injunction not to alienate the property is granted and having taken note of the said fact into consideration, condition is imposed to give an undertaking to compensate for injury or loss that would cause defendant No.2, in case the plaintiffs fail to get the relief of partition and declaration, I do not find any error committed by the Trial Court in imposing such a condition, taking note of the relief what has been sought and the Trial Court has also taken note of the fact that defendant No.2 had availed loan from defendant No.18 by mortgaging the property. Therefore, the Trial Court has not committed any error in imposing such condition and I do not find any ground to modify the order as claimed by the appellants.
With these observations, the appeal is dismissed.
