1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPAL FROM ORDER 62 OF 2009. Shri Tarachand Nana Shejwal and others ...Appellants . VERSUS. Shri Govind Maharaj Fakirrao Bagul and others. ...Respondents. Mr. Kiran M.Nagarkar,Advocate for appellants. Mr. P.M.Gaikwad for respondents (CORAM : P.R.BORKAR,J ) DATE : 10thSeptember,2009. PER COURT : 1. This appeal is directed against the order of temporary injuntion granted by the learned Civil Judge Senior Division Kopargaon dated 8th April,2009 passed on application Exh.6 in Special Civil Suit No. 129 of 2008, whereby the defendants are temporarily restrained from alienating the property or creating third party interest in the suit property. 2. It is case of the respondent no.1, who was original plaintiff, that he has agreed to purchase the property belonging to appellants and respondent Nos. 2 and 3 for Rs. Eight Lacs, out of it, an amount of Rs.5,27,000/- was paid time to time and an agreement to sale was executed. However, lateron the defendnats refused to execute the sale deed and therefore, the suit is filed for specific performance of agreement of sale. The application Exh.6 is for restraining the defendants from alienating the suit 2 property and creating third party interest in it. The said application is allowed. Therefore, this appeal from order. 3. The learned advocate Mr. Nagarkar vehemently attacked on the various documents, on which the respondent No.1- ori.plaintiff placed reliance and to which reference is made by the learned Civil Judge. 4. The First agreement of sale between Sakharbai, the widow of original owner Dhondiba and respondent No.1 is dated 21th June,2004. It is stated that Sakharbai had put two thumb impressions on the documents. The thumb impression of Sakharbai were attested by one Gunwant Bhagwat Pagare, Special Executive Officer. The document bears date 21th June,2004. However, the respondent No.1, so also witness Shobha Sadanand Makasare have put their signatures and date 21th June,2004. The date of purchase of stamp paper is mentioned as 22nd June,2004. So, question arises, if the document was written and executed prior to purchase of the stamp paper. The learned Civil Judge has rightly discarded this document. There is document of Samatipatra whereby all appellants and respondent Nos. 2 and 3 agreed and consented Babanbai, who was original defendant No.10, shall be entitled to represent them in litigation, purchase and sale of property and to compromise the litigation on their behalf. This document is dated 01.11.2004, which is subsequent to earlier agreement to sale dated 21.6.2004. 5. The respondent No.1 mainly relied on the agreement of sale executed on 28th August,2007. This was signed by the 3 original defendant No.7 Sumanbai and original defendant no. 10 Babanbai. There in all 11 defendants, out of it two have signed. It is argued that other defendants have also consented and authorised Babanbai to execute the agreement of sale, but alleged agreement of consent-deed/Samtipatra is not registered. It does not amount to valid power of attorney. 6. Further, the contents of said agreement dated 28th August,2007 clearly indicates that Rupees Four lacs were paid time to time for the family expences, marriages and other expences. There are two receipts, one dated 28th February, 2008 and other is dated 7th June,2008, whereby payment of Rs. 67,000/- and Rs.50,000/-respectively are acknowledged. The receipt of Rs.67,000/- is signed by original defendant No.1, whereas the receipt for the amount of Rs.50,000/- is signed by the respondent Nos. 5,7 and 10. 7. The learned advocate Shri Nagarkar referred Section 17(1) of the Registration Act,1908. Sub-section 1 of section 17 of the Registration act is as follows . 17. Docouments of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after, the date on which Act XVI of 1864, or the India Registration Act,1866, or the Indian Registration Act,1871, or the Indian Registration Act,1877, or this Act came or comes into force namely- (a)instruments of gift of immovable property; (b)other non-testamentary instruments which purport or operate to create, declare, assigne, limit or extinguish, whether in present or in future, any right title or 4 interest, whethet vested or contingent of thevalue of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acnowledge the receit or payment of any consideration on account of the creation, declaration, assignment, limitation orextinction of any such right, title or interest; and (d)lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; [(e)non-testatmentry instruments tranferring or assinging any decree order of a Court or any award when such decree or order of award purports or operates to create, declare, assign, limit or extinguish, whether in the value of one hundred rupees and upwards, to or in immovable property;] Provided that the [State Government] may, by order published in the [Official Gazette] exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and athe annual rents reserved by which do not exceed fifty rupees. Thus, it makes clear that incase agreement of sale is not registered, the intending purchaser would not be entitled to set up defence under section 53-A. It does not make agreement of sale invalid and does not prohibit intending purchaser from filing suit for specific performance. 8. In view of the circumstances stated earlier, particularly when only 02, out of 11 defendants have signed the agreement of sale. The plaintiff-respondent No.1 may not be entitled to specific performance of agreement against all defendants. Still in the written statement 5 Exh.33 filed by the defendant Nos. 1 and 3, at the end of para No.11 of the written statement, it is stated some of the defendants must have taken some amounts as help from the respondent no.1-plaintiff and being not able to repay, their signatures might have been obtained on some dcuments. The respondent No.1 is taking disadvantage of said document. Even assuming for a moment that specific performance can not be given for various reasons, still there is no reason to believe that decree for refund of amount paid would not be passed. In this view of matter, there is no reason why defendants should not restrained from transferring, alienating or creating third party interest during the pendency of suit. The defendants have not pointed out any urgency which requires sale of the property. Even purchaser would be bound by the decree ultimately passed. In this view of matter, in my opinion, the discretion used in granting temporary injuntion prohibiting alienation and creating third party interest need not be interfered with. Hence, the appeal is dismissed. 9. In view of dismissal of appeal, Civil Application No.6758 of 2009 stands disposed of. 10. The learned Advocate Mr. Nagarkar for the appellant, at this stage, requested this Court that the trial court may be directed to dispose of the suit at the earliest. Accordingly, the trial court is directed to dispose of the suit expedtiously. The parties to appear before the trial Court and co-operate. ( P.R.BORKAR, J. ) MTK/AO 62.09 6