- 1 - 14-cas-1517-2010 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1517 OF 2010 IN SECOND APPEAL NO.584 OF 2010 Shri Ramu R. Makane (since deceased) through his Legal Heir- Smt. Indira R. Makane & Others. .. Applicants. V/s. Shri Dadaso @ Dada Malgonda Patil & Another. .. Respondents. Mr. Kedar J. Patil, for the Applicants. Mr. P. D. Dalvi, for Respondent No.1. CORAM: G.S.GODBOLE,J. DATE : 20th OCTOBER, 2011. P.C:- 1 The Second Appeal is admitted by order dated 12th September, 2011. Rule is issued in this Civil Application and Respondent No.1- Plaintiff who is the only contesting Respondent has filed reply. No Rejoinder has been filed, though reply is served on 29th July, 2011. Normally, on admission of the Second Appeal, this Court would have - 2 - 14-cas-1517-2010 stayed the execution of the decree for specific performance. However, in this case, the conduct of the Applicants dis-entitles them from getting such relief. 2 Mr. Dalvi has brought to my notice that by an order passed by learned District Judge-I, Kolhapur on 16th March, 2009 below Exhibit 7 in Regular Civil Appeal No.282 of 2007, the parties therein were directed to maintain status-quo. Despite this order, on 5th January, 2010, during pendency of the Appeal in the District Court, the Appellant No.2 herein had executed Power of Attorney in favour of Babaso A. Budhale and Appellant Nos.3 to 7 had signed as consenting parties in the said Power of Attorney. On the strength of the said Power of Attorney, the said Babaso A. Bhudhale has executed a Sale Deed dated 3rd May, 2010 in favour of his son - Chandrakant Budhale, after obtaining the permission of the S.D.O., Ichalkaranji on 29th April, 2010. One of the suit lands bearing gat no.1221-B, total ad-measuring 43 R has been sold for a sum of Rs.2,50,000/-. In view of this, in so far as this land is concerned, Appellants have already alienated property, they do not have any prima facie case, nor is balance of convenience their favour nor can any loss be caused to them if the Application is dismissed. In so far as other land namely gat bearing No.1221-D ad-measuring 23-R is concerned, Advocate - 3 - 14-cas-1517-2010 for the Appellant states that both the Appellants are ready to file their written undertaking stating that they will not alienate or create any third party interest or part with possession in respect of the said land. On the other hand, Advocate for the Respondent No.1 is also ready to file similar undertaking in respect of both the lands. 3 I have considered the rival submissions. In respect of the land which is already alienated namely gat bearing no.1221-B, no relief can be granted to the Applicants. In respect of other land, namely gat no. 1221-D, ad-measuring 23 R since Second Appeal is admitted, the Appellants have prima facie case and balance of convenience in their favour in respect of at least one land and said possession deserves to be protected, subject to the condition that all the Appellants file written undertakings in this Court within a period of six weeks from today and for a period of six weeks, an injunction would operate against them. In case, undertakings are not filed by them within six weeks, the stay granted by this Court will come to an end and the Respondent No.1 will be free to execute the decree and take possession of gat no.1221-D. 4 Hence, I pass the following order:- (i) The prayer for stay of execution of the decree passed by - 4 - 14-cas-1517-2010 the learned District Judge-I, Ichalkaranji on 22nd June, 2010 in RCA No.282 of 2007 in respect of one of the suit property bearing gat no.1221/B of village Herle, Taluka Hatkanangle, District Kolhapur is rejected. Respondent No.1 is allowed to execute the decree in respect of that land. It is, however, directed that Respondent No.1 will not part with possession or create any third party rights or interests in respect of the said land or create any encumbrance over or enter into any sort of oral or written agreement in respect of the said land till the final disposal of the Second Appeal, nor will Respondent No.1 claim any equities in respect of any improvements which may be made by him in respect of said land in case Second Appeal is decided against Respondent No.1. (ii) Written undertaking incorporates all the aforesaid aspects, shall be filed by Respondent No.1 in this Court within four weeks from today. (iii) Until further orders, injunction will operate as against Respondent No.1 in terms of the aforesaid conditions as indicated herein above. (iv) Respondent No.1 will not mortgage or create any charge and will not take any loan as against security of said land. - 5 - 14-cas-1517-2010 (v) Civil Application is allowed in respect of land bearing gat no.1221-D of Village Herle, Taluka Hatkangale, District Kolhapur, subject to the condition that Appellants will not create any third party rights or interest and will not part with possession of the said land and subject to the condition that all the Appellants file written undertakings in this Court within a period of six weeks from today and for a period of six weeks, an injunction in those terms would operate against them. In case, undertakings are not filed by them within six weeks, the stay granted by this Court will come to an end and the Respondent No.1 will be free to execute the decree and take possession of gat no.1221-D. (vi) Rule made partly absolute in the aforesaid terms, with no order as to costs. (G.S.GODBOLE,J.)