( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 48 OF 2009 WITH CIVIL APPLICATION NO. 5445 OF 2009 Balaji s/o. Pandhari Pandhare .. Appellant Versus Vyankat s/o. Kishan Mali and anr. .. Respondents Shri Amit Deshpande, Advocate for the appellant. Shri C.R. Deshpande, Advocate for respondent No.2. CORAM : P.R. BORKAR,J. DATED : 12.08.2009 P.C. :- 1. Heard Adv. Shri Amit Deshpande for the appellant and Adv. Shri C.R. Deshpande for respondent No.2. This is an appeal filed against refusal to grant application Exh.50 restraining respondent No.2 from alienating or transferring the suit property pending the suit. The learned Civil Judge, Senior Division, Latur, by his order dated 02.04.2009 rejected application Exh.50. The original suit was for specific performance of contract and pending the suit respondent No.1 sold the property to respondent No.2. Therefore, respondent No.2 is added as party and application ( 2 ) Exh.50 was filed for restraining him from further alienating the property. 2. The learned advocate for the appellant cited two cases. In the case of Smt. Chand Rani (dead) by L.Rs. And Smt. Kamal Rani (dead) by L.Rs., AIR 1993 S.C.1742, in para 18 following observations are made :- “18. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.” ( 3 ) 3. He also relied on para 18 of the case of Usha Sinha V/s. Dina Ram and Ors., AIR 2008 S.C.1997, in which the doctrine of ‘lis pendens’ was considered and it is held that the purchaser pending the suit is not entitled to obstruct execution of decree by competent Court and he is not entitled to seek benefit of Rule 98 or 100 of Order XXI of the C.P.C. 4. The learned Civil Judge declined to grant injunction saying that prima facie the suit was time barred. He observed in paras 4 and 5 that as per the agreement of sale, the sale-deed was to be executed on or before 30.05.2003 and the suit was filed on 18.04.2007 and therefore it was time barred. As per Article 54 of the Limitation Act, where the date is fixed for performance, the limitation starts from the date on which the performance was required and if no such date is fixed then the limitation will start from the day on which performance was refused. My attention was drawn to copy of agreement of sale which was produced with Civil Application No. 5445 of 2009. Said agreement of sale states that on the day of agreement respondent No.1 had received Rs.1 lakh; remaining amount of Rs.1,77,000/- would be received by respondent No.1 from the appellant till 30th ( 4 ) May, 2003 and he would execute the sale-deed. It is the interpretation of the words “Paryant” (until) which is material. The learned Civil Judge also observed at the end of his order that even in the event of transfer by respondent No.2 during pendency of the suit, transfer is certainly hit by Section 52 of the Transfer of Property Act and no irreparable loss will cause to the plaintiff, much less compensable in terms of money. 5. Considering the facts and circumstances of the case, it cannot be said that the view taken by the Trial Court is illegal and not sustainable in law. In this view of the matter, this Appeal From Order is dismissed at the stage of admission. 6. In view of disposal of this Appeal From Order, Civil Application No. 5445 of 2009 does not survive and it is also disposed of as such. [P.R. BORKAR,J.] snk/2009/AUG09/ao48.09