1 CA 18347.2010 in FA St. 37219.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 18347 OF 2010 IN FIRST APPEAL STAMP NO. 37219 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.P.S.Agrawal, Advocate for the applicant. Mr.C.R.Deshpande, Advocate for Resp. no. 2 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 05/05/2011 PER COURT : 1. This is an application seeking injunction restraining the respondent no. 2 from alienating, transferring the suit house No. 10, Municipal House No. 21, so also from withdrawing the amount kept in the fixed deposit. The amount kept in fixed deposit has already been credited in the account of the respondent no. 2. So, the said relief does not survive. 2. Mr. P.S.Agrawal, the learned counsel contends that even during the pendency of the Suit, the respondents were injuncted from alienating and transferring the suit property. The 2 CA 18347.2010 in FA St. 37219.2010 First Appeal is admitted. As such, the learned counsel states that it would be in the interest of all the parties that the subject matter of the Appeal is safe-guarded and no third party interest is created so as to avoid multiplicity of litigations. 3. Mr. Deshpande, the learned counsel for the respondent no. 2 submits that as far as the alienation part is concerned, Section 52 of the Transfer of Property Act would take care of the interest of the appellant and in such circumstances, injunction need not be clamped. For the purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Kachhi Properties Satara V/s Ganpatrao Shankarrao Kadam and others reported in 2010 Mh.L.J. ( 5 ) - 903 ( Bombay). According to the learned counsel, the trial Court on merits has come to the conclusion that the plaintiff does not have any right, title and interest over the suit property and as such had dismissed the Suit. The decree stands in favour of the present respondent. As such, the respondent should not be prevented from exercising his rights over the property. 4. Mr. Deshpande, the learned counsel further submits that the alienation can be made subject to 3 CA 18347.2010 in FA St. 37219.2010 the decision of the Appeal and on the instructions of the respondent no. 2, who is present in the Court, the learned counsel submits that the respondent no. 2 would file an undertaking that even if the property is alienated, the same will be subject to the decision of the Appeal and further the nature of the suit property would not be changed by the purchaser. 5. The First Appeal is admitted. In normal course, it is in fitness of things to safe-guard the subject matter of the lis. However, taking into consideration the readyness shown by the respondent no. 2 to give an undertaking to this Court that the transfer/alienation of the property would be subject to the decision of the Appeal and that even the sale deed would contain the recital to that effect and further that the nature of the property would not be changed. The interest of the applicant would be safe-guarded and there would be no need to pass prohibitory order restraining the respondent no. 2 from alienating the property. 6. In view of the above conspectus and on the assurance given by the respondent no. 2 that the undertaking would be filed within one ( 1 ) week to the effect that the alienation/transfer of the suit 4 CA 18347.2010 in FA St. 37219.2010 properties if made, would be subject to the decision of the present Appeal and that the sale deed will also contain the recital to that effect and further recital that the nature of the suit properties would not be changed. Liberty to the parties to move for early hearing. The present Civil Application is accordingly disposed of. [ S.V. GANGAPURWALA,J. ] KNP/CA 18347.2010 in FA St. 37219.2010