1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.9624 OF 2011 IN FIRST APPEAL NO.1915 OF 2011 1. Jaywant Harji Gunjal, Age-73 years, Occu-Agriculturist, R/o.Sangamner, Tq.Sangamner, Dist. Ahmednagar 2. Keruji Harji Gunjal, Age-80 years, Occu-Agriculturist, R/o.Sangamner, Tq.Sangamner, Dist. Ahmednagar 3. Rajendra Keruji Gunjal, Age-47 years, Occu-Agriculturist, R/o.Sangamner, Tq.Sangamner, Dist.Ahmednagar 4. Mahananda Ulhasrao Raje, Age-57 years, Occu-Agriculturist, R/o.Sangamner, Tq.Sangamner, Dist.Ahmednagar 5. Vijaya Subhashrao Pawar, Age-55 years, Occu-Agriculturist, R/o.Sangamner, Tq.Sangamner, Dist.Ahmednagar, 6. Mangala Ashokrao Inamdar, Age-50 years, Occu-Student, R/o.Sangamner, Tq.Sangamner, Dist.Ahmednagar APPLICANTS VERSUS 2 1. Jaibabaji Land Developers, Prop.Vilas Namdeo Pangarkar, Age-38 years, Occu-Agriculturist, R/o.Pangari (Bk.), Tq.Sinnar, Dist.Ahmednagar, 2. Udaykumar Keruji Gunjal, Age-53 years, Occu-Agriculturist, R/o.Sagar Housing Society, Sangamner, Tq.Sangamner, Dist.Ahmednagar RESPONDENTS WITH CIVIL APPLICATION NO.9663 OF 2011 IN FIRST APPEAL NO.1915 OF 2011 Jayawant Hariji Gunjal and others APPLICANTS VERSUS Jaibabaji Land Developers, RESPONDENTS and others Mr.A.S.Bajaj, learned counsel for the applicants. Mr.A.Z.Gandhi, learned counsel for respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 19/12/2011 PER COURT : 1. The applicants have challenged the judgment and decree passed in Spl.C.S.No.37/2008, passed by the Civil Judge, 3 S.D.Sangamner by his judgment dated 09/06/2011, by which suit filed by the applicants herein for declaration that the suit property/ subject matter city survey no.3152/A, which was later on converted in Plot No.(87/2/1) 30 admeasuring 450 Sq.Mt., and (87/2/1) 31 and the sale deed executed by the respondent no.2 in respect of above property, in favour of respondent no. 1 dated 16/06/2008, be declared null and void and not binding on these applicants and for the decree of perpetual injunction was dismissed by the learned Trial Court. Civil Application No.9624/2011 is moved by the original plaintiffs for the prayers that the respondents to the suit be restrained to change the nature of the suit property and not to create any third party interest during the pendancy of the appeal. Civil Application No.9663/2011 is filed for interim injunction against the respondents restraining them from obstructing peaceful possession of plaintiffs during the pendancy of the suit. 2. I have heard learned counsel Shri.Bajaj for the applicants followed by the submissions of learned counsel for respondents. 3. The facts which are brought to the notice of the Court are that earlier Special Civil Suit No.80/92 was filed by the appellant no.1 herein against appellant no.2, respondent no.2, appellant no.3, wife of appellant no.2 and daughter of respondent no.2 for partition and separate possession. It appears that the said suit ended in compromise and the compromise decree came to be passed on 4 30/11/1992. Copy of the said decree is annexed with the appeal memo. The compromise pursis, which forms part of the said compromise decree shows that 4½ R land out of S.No.87 (Old No. 441)/2/2/1/2A/1B had been given to the share of applicant no.1 while remaining part of 4½ R was given to the share of applicant no.2 and his wife. It is also brought to the notice of this Court that this decree was challenged in Spl.C.S.No.137/1994 by the wife of respondent no.2 on behalf of their minor son. It is not under dispute that the said special civil suit no.137/1994 was not finally decided and the decree passed in Spl.C.S.No.80/1992 was not set aside. If it is so, the decree is binding on the parties to the suit. It is the fact that the respondent no.2 to this appeal, who is defendant no.2 in the original suit is a party to that suit. Admittedly, he has not challenged that compromise decree. Perusal of the observations of the judgment impugned particularly observations in para no.19 and 20 reveals that the decree in Special Civil Suit No.80/1992 was challenged by respondent no.2, which is apparent error of appreciation of evidence and the documents placed on record. Law is settled that once the decree is passed by the competent court of law and either it is set aside by the Appellate Court or if the decree is challenged by the parties on the ground that the decree is obtained by fraud, the decree is always binding on the parties to the suit. If as per the compromise decree in Special Civil Suit No.80/1992, in which subject matter of Special Civil Suit No.37/2008 had gone to the share of appellants no.1,2 and wife of appellant no.2 and if 5 respondent no.2 has sold that property to respondent no.1, then neither respondent no.1 nor respondent no.2 prima facie get any valid title. If it is so, it is necessary to protect the rights of the applicants. Rights of the applicants are very well described in the compromise decree of Special Civil Suit No.80/1992, which required to be protected during the pendancy of appeal. 4. Learned counsel appearing for the respondents is unable to demonstrate before the Court that unless the decree passed by the Competent Court of Law, is set aside either by the Appellate Court or by competent Civil Court, that decree is binding on the parties to the suit. 5. In the light of this, both the civil applications ought to be allowed during the pendancy of the appeal. Accordingly, both civil applications are allowed as prayed for by the present applicants. The injunction shall operate against the respondents, not to create any third party interest in the suit property and not to change the nature of the suit property during the pendancy of the suit and also not to obstruct the peaceful possession of the applicants during the pendancy of the appeal. Both civil applications stand disposed of accordingly. (A.V.POTDAR, J.) khs/DEC.2011/ca9624-11