Case Note & Summary
The appellant, Surekha Sakharam Washiwale, filed a suit for cancellation of a sale deed dated 11 October 2011, alleging that the respondents fraudulently executed the sale deed using a power of attorney that she had revoked in 2007. She had purchased the suit property in 2001 and was in possession. In 2005, she executed a power of attorney in favor of defendant No. 2 as security for a loan, but later revoked it by public notice in 2007. She claimed no consideration was paid and she never transferred title. The trial court rejected her application for interim injunction under Order 39 Rules 1 and 2 CPC. The High Court held that the appellant had a strong prima facie case, as the power of attorney was revoked before the sale deed, and the suit was within limitation. The balance of convenience was in her favor as she was in possession. The court set aside the trial court's order and granted interim relief restraining the respondents from interfering with her possession and from creating third-party rights.
Headnote
A) Civil Procedure - Interim Injunction - Order 39 Rules 1 and 2 CPC - Prima Facie Case - The appellant sought cancellation of a sale deed executed by attorney holders after revocation of power of attorney - The trial court rejected the injunction application without considering the appellant's possession and the alleged fraud - Held that the appellant made out a strong prima facie case for grant of interim relief (Paras 6-8). B) Property Law - Power of Attorney - Revocation - Effect on Subsequent Transactions - The appellant revoked the power of attorney in 2007 by public notice, but the sale deed was executed in 2011 - The attorney holders had no authority to sell after revocation - Held that such a sale is voidable and the appellant is entitled to protection of possession (Paras 4-5). C) Limitation - Suit for Cancellation of Sale Deed - Article 59 of Limitation Act, 1963 - The suit was filed within three years from the date of knowledge of the sale deed (11 October 2011) - The trial court's finding on limitation was erroneous - Held that the suit is within limitation (Para 2).
Issue of Consideration
Whether the trial court erred in rejecting the appellant's application for interim relief under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908, pending suit for cancellation of sale deed.
Final Decision
Appeal allowed. The order dated 20 July 2012 passed by the learned Joint Civil Judge, Senior Division, Pune is set aside. The respondents are restrained from interfering with the appellant's possession and from creating any third-party rights in the suit property until disposal of the suit.
Law Points
- Interim relief
- prima facie case
- balance of convenience
- irreparable loss
- cancellation of sale deed
- power of attorney
- fraud
- limitation
