AO/380/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 380 of 2008 With CIVIL APPLICATION No. 14100 of 2008 In APPEAL FROM ORDER No. 380 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= GEETABEN B PATEL & 1 - Appellant(s) Versus VIJAYBHAI JAYANTILAL THAKKAR - Respondent(s) ========================================= Appearance : MR BK DAMANI for Appellant(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/12/2008 ORAL JUDGMENT 1. Admit. Shri R.B. Desai, learned advocate waives service of notice of admission on behalf of the respondent. With AO/380/2008 2/4 JUDGMENT the consent of the learned advocates appearing on behalf of the respective parties, the Appeal from Order is taken up for final hearing today. 2. Present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure is filed by the appellants original defendants challenging the order dated 8.12.2008 passed by the learned Chamber Judge of the City Civil Court at Ahmedabad passed below Notice of Motion in Civil Suit No. 1921 of 2008, by which summary suit filed by the respondent herein, the learned Chamber Judge has allowed the said application restraining the appellants original defendants from transferring/alienating the suit property in any manner whatsoever and by directing the appellants-defendants to maintain status quo with respect to the suit property. 3. It appears that the Summary Suit No. 1921 of 2008 is filed by the respondent herein original plaintiff for Rs. 12 lacs and in the said suit the respondent herein original plaintiff took out the Notice of Motion restraining the appellants from transferring/alienating the suit property in any manner whatsoever. The learned trial Court granted the same, against which the appellants- defendants have preferred the present Appeal from Order. 4. Shri Tarak Damani, learned advocate appearing for the appellants-defendants has submitted that the impugned order passed by the learned Chamber Judge be modified to the extent that let the appellants-defendants be AO/380/2008 3/4 JUDGMENT permitted to sell and / or dispose of the disputed property and before actual transfer the appellants may be permitted to deposit Rs. 10 lacs in the aforesaid suit without prejudice to his rights and contentions in the suit. Therefore, it is requested to modify the impugned order accordingly. 5. Shri Desai, learned advocate appearing on behalf of the respondents has submitted that if the appellants- defendants are to deposit Rs. 10 lacs in the trial Court in the aforesaid suit and the appellants are permitted to transfer, sell and / or alienate the disputed property, the plaintiffs would not have any objection. 6. In view of the above, the impugned order passed by the learned Chamber Judge of the City Civil Court at Ahmedabad dated 8.12.2008 passed below Exh. 5 in Summary Suit No. 1921 of 2008 is hereby modified to the extent that appellants-defendants are permitted to transfer /alienate and / or sell the disputed suit property on condition that appellants shall deposit Rs. 10 lacs with the learned trial Court in the aforesaid suit before actual disposal and/ or transferring the disputed suit property and till then the appellants-defendants are directed to maintain status quo. However, it is observed that aforesaid deposit of Rs. 10 lacs by the appellants- original defendants would be without prejudice to his rights and contentions in the summary suit and the same deposit shall not be as admission of the disputed claim by the appellants-defendants. Appeal from Order is accordingly partly allowed. AO/380/2008 4/4 JUDGMENT CIVIL APPLICATION NO. 14100 OF 2008 In view of the disposal of the Appeal from Order, no order in Civil Application. (M.R.SHAH,J.) kaushik