1 ao70.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 70 OF 2011 WITH CIVIL APPLICATION NO.5220 OF 2011 Balasaheb s/o Sopan Mane, Age: 42 years, Occ: Agri., R/o. Mirajgaon, Tq. Karjat, District Ahmednagar. At present r/o Murshadpur, Behind M.S.E.B. Ashti, Tq. Ashti, Dist. Beed and another. ...APPELLANTS VERSUS Usha Sanjay Mane, Age: 33 years, Occ: Business, R/o. Mirajgaon, Tq. Karjat, Dist. Ahmednagar. ...RESPONDENT ... Mr. Niteen V. Gaware, Advocate for appellants. Mr. N.K. Tungar, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 12TH SEPTEMBER, 2011 PER COURT : . This Appeal from Order takes exception to the order dated 15-03-2011 below Exhibit-5 in Special Civil Suit No. 15 of 2011 passed by the 2 ao70.11 Civil Judge, Senior Division, Shrigonda. 2. Learned Counsel appearing for the appellants submits that, appellant No. 1 has executed agreement to sell in favour of appellant No.2. Learned Counsel for the appellants would submit that, appellant No.2 is aggrieved by clause-3 of the impugned order. The respondent herein, was directed to join appellant No.2 as party defendant in the suit immediately within a week from passing of the impugned order. It is the contention of the Counsel for the appellants that, the final order has been passed by the learned Civil Judge, Senior Division, Shrigonda on 15-03-2011 clamping injunction against appellant No.1. However, clamping such injunction against appellant No.1 would certainly affect appellant No.2 since the property is sold by appellant No.1 to appellant No.2. Learned Counsel for the appellants relied upon the provisions of Order 39 Rule 3 of the Code of Civil Procedure and would contend that, before passing final order on 3 ao70.11 15-03-2011 appellant No.2 should have been herd by the Civil Judge, Senior Division, Shrigonda. The order even without notice clamping injunction is impermissible. 3. On the other hand, learned Counsel appearing for the respondent would submit that, this Court can direct the concerned Court to expedite the hearing of the said suit itself in stead, now upsetting the impugned order. It is further submitted that, agreement to sell is notarised document and such cannot be relied upon. It is further submitted that, the impugned order will not cause any prejudice to appellant No.2. Counsel further placed reliance upon the reasons recorded by the Civil Judge, Senior Division, Shrigonda and submitted that, this Appeal from Order is devoid of any merits and may be dismissed. 4. I have given due consideration to the rival submissions. In my opinion, clause-3 of the 4 ao70.11 impugned order directing the respondent to joint appellant NO.2 as party defendant and further disposing of the application for injunction on 15-03-2011, even without notice to appellant No. 2, was not permissible. Even if it is assumed for a moment that, the Court wanted to pass immediate orders to protect the interest of the plaintiff, by directing appellant No.1 prohibiting him from alienating the suit property, the Civil Judge, Senior Division, Shrigonda should have kept the application pending and after notice to added respondent i.e. appellant No.2 herein, should have disposed of the said application finally, after hearing appellant No.2. 5. I find considerable for in the submissions of learned Counsel for the appellants that, mandate of Order 39 Rule 3 of Code of Civil Procedure certainly provides for issuance of notice to the parties to the suit before any order is passed. In that view of the order, on this ground, impugned order is required to be 5 ao70.11 interfered with. Therefore, impugned order is quashed and set aside. 6. Application Exhibit-5 in Special Civil Suit No. 15 of 2001 is restored to its original file. The Civil Judge, Senior Division, Shrigonda would hear the parties afresh and pass appropriate order on merits. It is needless to mention that, till such application is finally decided by the Civil Judge, Senior Division, Shrigonda, appellant No.1 is restrained from alienating the suit property by any mode or creating third party interest in the said property. Parties to appear before the trial Court on 21-09-2011 at 11-00 a.m. On the said date, the concerned Court will fix the date for final hearing of the application Exhibit-5 and will decide the said application finally within one month from the first date of hearing. . It is needless to mention that, this Court has not opined anything on merits and it is 6 ao70.11 left to the concerned parties to agitate the points on merits. 7. Learned Counsel appearing for the respondent justified in praying that, hearing of the suit may be expedited. The Civil Judge, Senior Division, Shrigonda after deciding the application below Exhibit-5 may make endeavour to dispose of the suit itself finally, as expeditiously as possible, and within one year from today. Accordingly, Appeal from Order is allowed to the above extent. Consequently, Civil Application stands disposed of. [S.S. SHINDE, J.] sut/SEP11