1 1133.10-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 1133 OF 2010 M/s.Om Shivam Builders Pvt.Ltd. ... Appellant. V/s. Kashinath Vitthal Bhopi and others. ... Respondents. Rajesh S. Datar for the appellant. Kuldeep S. Patil with Ms.P.B.Kulkarni for the respondents CORAM: R.M.BORDE, J. DATED : 29th September 2011. P.C. : Heard. With the consent of parties, appeal is taken up for hearing and final disposal at the admission stage. 2. This appeal from order can be disposed of in view of the affidavit/ undertaking placed on record. The trial Court, while considering the application (Exh.5) presented in the Special Civil Suit No.294/2007 restrained the defendants from creating third party interest in the suit property till the decision of the suit. The plaintiffs and defendants entered into a transaction which culminated in execution of sale-deed dated 22nd March2006. Under the terms of the sale-deed, the original defendant No.1- builder and developer had 2 1133.10-ao agreed to provide sixteen constructed flats having build-up area of specifications mentioned in the sale-deed and also four shops of the specifications specified in the sale-deed to the plaintiffs and defendant Nos.2 to 6. As the defendants failed to adhere to the assurance given under the sale-deed, the plaintiffs were compelled to approach the civil Court by filing suit. It is also contended by the plaintiffs that defendant No.1 had agreed orally to pay a sum of Rs.5 lakh to the plaintiffs and defendant Nos.2 to 6. 3. The appellant/ defendant No.1 has presented affidavit- cum-undertaking before this Court and assured to allot, by way of consideration of sale-deed, sixteen residential flats and four shops in the building constructed by the appellant on the suit plot to the plaintiffs and defendant Nos.2 to 6. It is also undertaken by the appellant that sixteen flats and four shops of the description given in the undertaking constructed on the suit plot, which are proposed to be allotted to the plaintiffs and defendant Nos.2 to 6, are vacant and free of any encumbrances whatsoever. The appellant has also given undertaking that the appellant itself or anybody on its behalf shall not create third party rights, title and interest in respect of sixteen flats and four shops which are required to be handed over to the plaintiffs and defendant Nos.2 to 6. It is also undertaken by the appellant that the appellant would deposit a sum of Rs.5 lakh in the trial Court within a period of four weeks from today. The undertaking is accepted and taken on record. 4. In view of the undertaking tendered by the appellant, which has been accepted by this Court, the appeal from order can 3 1133.10-ao conveniently be disposed of. The learned counsel appearing for the respondents submits that his clients have no objection for disposal of appeal from order in view of the undertaking placed on record. In the result, appeal from order is allowed. The order passed by the Fourth Joint Civil Judge, Senior Division, Thane dated 15th September 2008 below Exh.5 in Special Civil Suit No.294/2007 is quashed and set aside. 5. In view of disposal of appeal from order, pending civil application does not survive and stands disposed of accordingly. (R.M.BORDE, J.)