CA 12338/10 in SA 572/10 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO.12338/2010 IN SECOND APPEAL NO.572/2010 _______________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | CORAM: S.V. GANGAPURWALA, J. Date: 09.12.2010 This is an application seeking stay to the execution of the decree passed by the Courts below. The second appeal is already admitted. The decree is in respect of specific performance of contract. Shri S.S. Patil, learned counsel for the respondent, contends that the applicants are not entitled for equitable relief inasmuch as before the lower appellate Court, when the present applicants had prayed for stay, the lower appellate Court had imposed conditions upon the present applicants. One CA 12338/10 in SA 572/10 2 of the conditions was that the applicants shall not create any third party interest. However, the record shows, more particularly the 7/12 extract, that in defiance of the said order passed by the lower appellate Court, the applicants have created a charge over the said property. In such circumstances, the conduct of the applicants disentitles them from any interim order. Shri A.M. Gholap, learned counsel for the applicants, submits that the said charge is since the beginning and was not created on 11.7.2009 as is reflected in the 7/12 extract. Be that as it may, as the second appeal is already admitted, in order to avoid any further complications, it would be in the fitness of things to stay the implementation of the judgments and decrees passed by the Courts below, but at the same time, interest of the respondent also deserves to be protected. Shri Gholap, learned counsel for the applicants, states that by the end of CA 12338/10 in SA 572/10 3 February, 2011, the applicants would remove the charge and clear the property from all encumbrances as is contended by the present respondent. In the result, the civil application is allowed in terms of prayer clause (B). The applicants shall not create any third party interest nor shall change the nature of the suit property in whatsoever manner. The applicants shall clear the charge over the property by the end of February, 2011 and submit the relevant documents before this Court showing that the charge is cleared. Failure to do so would automatically render the stay granted by this Court ineffective. Civil application is disposed of accordingly. (S.V. Gangapurwala, J.) Dt/- 09.12.2010 ndk/c9121012