1 CA 2110/2010 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2110 OF 2010 IN FIRST APPEAL NO. 654 OF 2010 Parasmal Kachardas Chordiya .. Applicant V/s Mukund Sridhar Ware & Ors. .. Respondents Mr. R.D. Soni i/b Mr. V.Z. Kankaria for the applicant. Mr. M.S. Karnik for respondent nos.1 to 8. CORAM : D.G. KARNIK, J. DATE : 6TH JULY 2011 P.C. : 1. Heard learned counsel for the parties. 2. This is an application for stay of execution of a decree. Ordinarily a stay for execution of a decree for possession of property during the pendency of an appeal is granted routinely. when an appeal has been admitted. However, the peculiar facts and circumstances of the case do not justify the grant of stay for execution of the decree but only some conditions can be imposed on the respondents to protect the interest of the appellant for the reasons indicated below. 2 CA 2110/2010 3. The respondents were original owners of the land. Under an agreement of sale they agreed to sell the land to the present appellant and by a subsequent agreement the appellant agreed to construct five flats and hand them over to the present respondents towards partial consideration. The appellant, who is a builder and promoter, was given rights to sell the remaining flats. The appellant accordingly constructed the building and has sold most, if not all of the flats, and has received the consideration from the flat purchasers. Thus, the appellant has derived the benefits under the contract and is only withholding the possession of the suit flats which are ready for occupation. In view of the fact that the appellant, who is a builder and promoter, has derived practically all benefits under the contract, he cannot withhold the possession of the suit flats from the respondents during the pendency of the appeal. By keeping the flats unoccupied, no purpose would be served and that may even result in deterioration of the condition of the flats. While granting permission to the respondents to take possession of the flats, a condition can be imposed that they shall not sell, transfer, alienate or part with possession the flats till the disposal of the appeal. This would protect the interest of the appellant. Hence, I pass the following order. 3 CA 2110/2010 (a) Stay for execution of the decree is refused. However, it is directed that the respondents, on receiving possession of the flats, shall not sell, transfer, alienate or part with possession of any of the said flats without prior permission of the Court till the disposal of the appeal. (b) Civil Application is disposed of. (D.G. KARNIK, J.)