1 CA11074.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 11074 OF 2010 IN SECOND APPEAL NO. 496 OF 2006 Ganeshlal Narayan Chaudhary Applicant V E R S U S Bhopyalal Tikaram Bhagat and others Respondents Shri S. B. Bhapkar, Advocate for the applicant Shri S.P. Deshmukh, Advocate for the respondents CORAM : A.V. NIRGUDE, J. DATED : 22nd August, 2011 PER COURT : 1. This Civil Application is filed by the respondent (plaintiff) for setting aside of the order passed by this Court in Civil Application No. 5751 of 2010, dated 24th June, 2010. Before passing this order the court had not heard the appellant. The impugned order prevents the respondent from alienating the suit property further during pendency of the appeal. The facts leading to this litigation, in short, can be stated as under : 2. The respondent (plaintiff) filed this suit for perpetual injunction. He was asserting that he was owner and possessor of the land and that the appellants (defendants) were trying to dispossess him. He succeeded in the suit and obtained the decree of perpetual injunction. The appellants’ first appeal was also dismissed in the year 2001, and 2 CA11074.10 soon thereafter, they filed this second appeal in this Court, but did not take any step in the second appeal till 2006. sometime in 2009, this Court, upon hearing both the sides, ordered admission of the appeal. Even thereafter, the appellants (defendants) did not take any step for obtaining any interim relief. Obviously, there was hardly any possibility of passing any interim order in favour of the appellants (defendants), because both the Courts below held that they should be injected from interfering in the respondent’s possession. However, thereafter, Civil Application 5751 of 2010 was filed, and for the first time the appellants (defendants) expressed their apprehension that during pendency of the appeal, the respondent (plaintiff) was likely to dispose of or create third party right in the suit property. 3. Though the notice of this application was given to the respondent, no one came before the Court, and as said above, on 24th June, 2010, interim relief was granted preventing the respondent (plaintiff) from creating third party right in the suit property. The respondent (plaintiff) thereafter filed this application, in which he pointed out that during pendency of this appeal, the he had effected partition of the suit property between his family members. There is a clear indication that such partition took place prior to the order passed in Civil Application 5751 of 2010. As indicated above, this litigation was dormant between 2001 to 2009. There was therefore an impression that the appellants (defendants) were not aggrieved because of the orders passed by the Courts below injecting them permanently. In such situation, if the respondent (plaintiff) had partitioned the suit property amongst his family members, it cannot be 3 CA11074.10 said to be a threat or an act which would cause prejudice to the appellants (defendants). Had this fact been known to the Court during pendency of the Civil Application 5751 of 2010, I think, most probably the order in that application would not have been passed. In view of this, the order passed in Civil Application 5751 of 2010, dated 24th June, 2010, stands set aside. In view of the development that has taken place during pendency of the appeal, the appellants are given liberty to take further steps. Thus, the Civil Application stands disposed of. ( A.V. NIRGUDE, J. ) SRM/CA/11074/10/22/8/11/ok