1 906.cas523.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 523 OF 2011 AND CIVIL APPLICATION NO. 425 OF 2005 IN SECOND APPEAL NO. 608 OF 2005 WITH CIVIL APPLICATION NO. 531 OF 2011 AND CIVIL APPLICATION NO. 350 OF 2005 IN SECOND APPEAL NO. 171 OF 2005 Shri Dattu Maruti Borhade. ....Applicant. Vs. Shri Shripati D. Borhade & Anr. ....Respondents Mr. Machindra Patil, Advocate for Applicant. Mr. A.Y. Sakhare, Sr. Counsel i/b. YKS Legal, Advocate for Respondent Nos. 1 and 2. CORAM:- GIRISH GODBOLE, J DATED:- OCTOBER 21, 2011 P.C. 1. Heard Mr. Patil, Advocate for the Applicant and Mr. Sakhare, Advocate for the Respondent Nos. 1 and 2. 2 906.cas523.11 2. After hearing the Advocates at length, I had earlier adjourned the hearing by appointing Advocate Mr. Rajure as a Mediator. Mr. Rajure has done an excellent job by holding meetings of the parties and has tried his best to settle the dispute amicably. However, mediation has failed. The elaborate report of Mr. Rajure is taken on record and it is necessary to express gratitude to Mr. Rajure for the efforts taken by him. 3. Mr. Sakhare had opposed the prayer in the Civil Applications and in support of his submissions he has placed strong reliance on the order passed by the learned Single Judge (R.Y. Ganoo, J) and hence it is necessary to consider that order and legal effect of that order. Second Appeal No. 608/2005 has been admitted on 8/9/2005 and by an order of even date the Second Appeal No. 171 of 2005 is merely tagged for being decided simultaneously with the Second Appeal No. 608 of 2005. It is pertinent to note that while admitting the Second Appeal, notices were issued on the Civil Application No. 425 of 2005. Subsequently on 16/5/2006, the learned Single Judge issued notice and clause 3 of the said order reads thus : “3. In the meantime, the respondent shall not create third party interest in the suit property.” 3 906.cas523.11 Thereafter on account of non-payment of Bhatta, conditional order was passed. It appears that Bhatta was thereafter paid. Thereafter the Respondents filed Civil Application No. 201 of 2009 in Second Appeal No. 608 of 2005 seeking a clarification that the earlier order dated 16/5/2006 passed in Civil Application No. 425 of 2005 in Second Appeal No. 608 of 2005 has come to an end on 15/6/2006 and the said order is not in operation. This Civil Application was allowed by this Court (R.Y. Ganoo, J) on 5/9/2009. The Advocate for the Applicants appears to have mentioned the matter again but the earlier order was not recalled but it was directed that Civil Application No. 425 of 2005 will be heard on its own merits. Thereafter the Applicant filed Civil Application No. 747 of 2009 for recalling the Order dated 15th May, 2009 in Civil Application No. 201 of 2009. However, even that Application was not entertained on the ground that it was not maintainable and was dismissed. 4. Thus after getting this clarification, the original Respondent in the Second Appeal has created third party interests in favour of the proposed Respondent M/s. Rama Builders and Developers. According to Mr. Sakhare, when the Sale Deed was executed in favour of the proposed Respondent on 28/5/2009, no interim relief was operating. This 4 906.cas523.11 submission of Mr. Sakhare deserves to be accepted since a specific order has been passed by the learned Single Judge of this Court (R.Y. Ganoo,J) clarifying that the earlier order of status quo has come to an end. Mr. Patil submitted that the view taken by R.Y. Ganoo, J is contrary to the reported Judgment of this Court(A.S. Oka, J) in Govind Bhagoji Kamable. v/s. Sadu Bapu Kamable & ors. 2005 (1) Mh. L.J. 651=2004(6) B.C.R. 552. Prima facie the submission of Mr. Patil is correct. However, since in this present case a specific order was passed by R.Y. Ganoo, J, that is the order which will govern the existence or otherwise of the status quo order. 5. Mr. Sakhare, Advocate for the Respondent Nos. 1 and 2 is therefore justified in contending that there was no status quo or injunction as on 31st May, 2009 when the proposed Respondent purchased the property and that submission deserves to be accepted. In view of the fact that the property has changed hands, it is necessary to implead the said proposed Respondent as Respondent No. 2. The total land is substantial area admeasuring more than 1 Acre. It is necessary to preserve the property in the present State. However, the Respondent cannot be prevented from alienating the suit property and the rights of the Appellant can be sufficiently protected by directing that in case the Respondent wants to 5 906.cas523.11 sell the property or encumber it or alienate it or part with possession in any manner whatsoever, the alienation must be done by a registered instrument and a specific clause regarding pendency of the present 2 Second Appeals has to be incorporated in the said instrument. 6. Hence I pass following order : (i) Rule in Civil Application No. 523 of 2011 is made partly absolute. Application is allowed in terms of prayer clause (b). Amendment to be carried out forthwith in the court. The added Respondent No. 2 shall not develop or carry out any construction or change the nature of the suit land bearing Gat Nos. 726 admeasuring 33R and 724 admeasuring 12 R situated at Borhade Vasti Village Moshi, Tal. Havelli, District Pune in any manner either by himself or through any servant or agent if the Respondent No. 2 desires to sell the suit land bearing Gat Nos. 726 and 724, or encumber it or alienate it or part with possession in any manner whatsoever, the alienation must be done by a registered instrument and a specific clause regarding pendency of the present 2 Second Appeals has to be incorporated in the said instrument. After creation of such third party interest, factum of such creation 6 906.cas523.11 alongwith all the copies of such instrument shall be intimated to the Appellant within a period of 4 weeks from execution of any instrument. Rule is made partly absolute in the aforesaid terms with no order as to costs. (ii) Rule in Civil Application No. 531 of 2011 is also made partly absolute in terms of prayer clause (b). Amendment be carried out forthwith in Court. (iii) In view of the aforesaid orders, Civil Application No. 350 of 2005 and Civil Application No. 425 of 2005 do not survive and the same are disposed off. 7. In Second Appeals, Advocate for the added Respondent undertakes to file Paper Book and Decree Forms within a period of 12 weeks from today. Statement accepted. If the Paper Book and Decree Forms are filed, the Second Appeal shall be listed for final hearing in the month of January, 2012. (GIRISH GODBOLE, J)