Shriram vs Suresh Makwana

1 MA-2632-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
th
ON THE 15 OF SEPTEMBER, 2026
MISC. APPEAL No. 2632 of 2023
SHRIRAM
Versus
SURESH MAKWANA
Appearance:
Shri Mahendra Singh Gurjar - Advocate for the appellant.
None for the respondent.
ORDER
1. This miscellaneous appeal is preferred by the defendant under Order
43 Rule 1(r) of CPC impugning order dated 7.3.2023 passed by the 2nd
District Judge, Indore in RCSA 225/2023, whereby the application moved by
the respondent under Order 39 Rule 1 & 2 of CPC was allowed and the
appellant has been restrained from alienating, transfer, encumbering the suit
land during the pendency of the suit.
2. The short facts of the case are that on 27.5.2021 the appellant and
his mother entered into an agreement to sale the subject land bearing Survey
No.14 admeasuring 0.809 hectare of village Dudhiya, Tehsil and District
Indore to the respondent and the terms of the agreement were reduced in
writing.
3. The respondent filed a civil suit for specific performance of the
contract upon the allegation that there were some dispute between the family
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 16-09-2026
18:05:46

2 MA-2632-2023
members of the appellant and, therefore, the balance payment was not made

by the respondent as per the terms of the contract. However, the respondent
was ready and willing to perform his part of the contract. Along with the
plaint an application under Order 39 Rule 1 & 2 of CPC was also moved for
issuance of temporary injunction in favour of the respondent, which was
opposed by the appellant mainly on the ground that the respondent has failed
to make the payment of the balance sale consideration within time as
stipulated in the contract and there was no dispute between the family
members of the appellant. After execution of the agreement, mother of the
appellant died, therefore, suit has been filed against the appellant only.
4. The trial Court after considering the pleadings of both the parties
held that it cannot be decided at this stage that which party was at fault and
this issue can be decided only after recording evidence of the parties, and
allowed the application filed by the respondent. The temporary injunction
has been issued against the appellant to restrain him from sale, alienation,
transfer or encumbering the property in any other way till decision of the
suit.
5. Notice of this appeal was issued to the respondent, which was
served as per the office report, however no one appeared on behalf of the
respondent. On the last date of hearing i.e. 20.8.2026 in the interest of justice
the case was adjourned. Today also no one is present on behalf of the
respondent.
6. Counsel appearing on behalf of the appellant submits that the
respondent paid only the advance amount of Rs.25 Lakhs out of the total sale
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 16-09-2026
18:05:46

3 MA-2632-2023
consideration of Rs. 5,30,00,000/- and the balance amount was neither paid

by the respondent as per the terms of the contract, nor tendered and the
respondent has filed the suit upon a false allegation that there were some
disputes between the family members of the appellant. He further submits
that as the respondent has failed to point out the nature of the dispute and no
such details have been mentioned in the plaint itself. He further submits that
the suit is pending since 2023 and due to the temporary injunction issued by
the trial Court, the appellant is deprived from disposing his property. He
prays for setting aside the impugned order dated 7.3.2023 by allowing this
appeal.
7. After consideration, it appears that the execution of agreement is not
in dispute, however there is a serious dispute between the parties that which
party was at fault. It appears from the pleading of the respondent that the
respondent had not made the payment within time and made an excuse that
due to the dispute between family members of the appellant, the payment
was not made. On the other hand the appellant has alleged that the
respondent has failed to make the payment as per the terms of the contract.
8. Considering the nature of the dispute and considering the fact that
suit is still pending and injunction is prevailing and in force since 7.3.2023,
this Court is of the view that the trial of the suit should be concluded at the
earliest and trial Court should decide the case on the merits expeditiously,
preferably within a period of 4 months from the date of receipt of certified
copy of this order. The respondent cannot involved the property of the
appellant in dispute by making payment of just 5% amount as advance
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 16-09-2026
18:05:46

4 MA-2632-2023
money. The impugned stay shall operate for 4 months only.

9. With the aforesaid, present appeal is disposed of.
(VINAY SARAF)
JUDGE
trilok

Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 16-09-2026
18:05:46