1 caf6217 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.6217 OF 2007 IN FIRST APPEAL NO.886 OF 2007 1 Smt.Shubhada V. Nimbalkar & Ors. ...Applicants vs. Sharadchandra U. Nimbalkar & Anr. ...Respondents Mr.R.S.Apte, Sr.Counsel i/b Mr.M.S.Lagu for the applicants Mr.Vijay Patil for the respondent no.1 CORAM : A.S.OKA,J. DATE : APRIL 26,2011 P.C.: 1 Heard learned senior counsel for the applicants. The applicants are the appellants who are original defendant nos.2 to 7. Heard learned counsel for the first respondent who is the original plaintiff. By the impugned decree, a declaration has been granted that the sale deed dated 13 th March 2007 executed by the 2 nd and 3 rd defendants in favour of the applicants was illegal and was not binding on the first respondent-plaintiff. Perpetual injunction has been granted restraining the applicants from interfering with the possession of the first respondent till the share of the applicants is separated. 2 Appeal has been admitted for final hearing. The learned senior counsel for the applicants relied upon the order passed in the proceedings under section 145 of the Code of Criminal Procedure,1973. He pointed out that by an interim order, an officer was appointed as Court Receiver. He pointed out that the order was passed on 3 rd July 2002 by the Executive Magistrate in the said 2 caf6217 proceedings releasing the said land from the possession of the Court Receiver. He relied upon the order dated 27 th November 2002 passed in the revision application filed by both the parties in the Sessions Court against the said order dated 3rd July 2002 and submitted that the order appointing the Receiver has been restored and there is nothing on record to show that the Receiver had handed over possession to the first respondent. 3 The learned counsel for the first respondent submitted that during the pendency of the suit there was temporary injunction granted protecting the possession of the first respondent. He pointed out that the appeal from order was preferred by the applicants in this Court in which interim order of status quo was passed. He submitted that during the pendency of the present suit, while recording prima facie finding, the possession of the first respondent has been protected. 4 I have considered the submissions. It is an admitted fact that during the pendency of the present suit, the possession of the first respondent was protected by an order of temporary injunction passed by the Trial Court. This Court in Appeal from Order did not grant stay of the said order, but directed the parties to maintain status quo. Therefore, reliance cannot be placed by the applicants on the orders in the proceedings under the said Code of 1973 by contending that the Court Receiver is still in possession. During the pendency of the suit, the possession of the first respondent was protected and now there is a finding recorded that the first respondent is in possession and therefore, decree for perpetual injunction has been passed. 5 It must be stated here that according to the case of 3 caf6217 the first respondent he himself, second defendant and third defendant were having undivided share in the suit land. The second and third defendants executed a sale deed in favour of the applicants. Therefore, a finding has been recorded that the applicants cannot be in possession as the share of the second and third defendants was not separated. 6 In the circumstances, the reliefs prayed for in this application cannot be granted except the relief restraining the first respondent from creating third party rights in respect of the undivided share allegedly purchased by the applicants from the second and third defendants. 7 Hence, application is disposed of by passing the following order : i) The first respondent is hereby restrained from creating third party rights in respect of the undivided share purchased by the applicants under the sale deed executed by the second and third defendants till the final disposal of the appeal. JUDGE