1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Civil Application No.13409 Of 2009 In First Appeal No.3224 Of 2009 Kunal S/o Ashokrao Aher And Others. ... Applicants. Versus Jainarayan S/o Bhikulal Gilda And Others. ... Respondents. -------- Shri. S.R. Chowkidar, Advocate for the appellants. Shri. Vivek Bhavthankar, Advocate for respondent No.1. Shri. M.V. Deshpande, Advocate for respondent Nos.2 and 3. Smt. Anjali B. Dube, Advocate for respondent Nos.4 to 6. -------- CORAM: R.M. BORDE, J. DATE: 15th FEBRUARY 2010 2 PER COURT : 1) This is an application seeking an order of injunction against the respondents restraining them from obstructing the possession of the plaintiffs over the suit property as well as for clamping a restraint order against them from creating third party interest during continuation of the appeal. The learned counsel appearing for the applicants has invited my attention to the order passed by the 4th Ad-hoc District Judge Jalna in Misc. Civil Appeal No.21 of 2005 on 9-12-2005. While dealing with the Misc. Civil Appeal, during continuation of the suit the First Appellate Court clamped a restraint order against the defendants restraining them from interfering in the possession of the appellants over the suit property. The defendants were also restrained from creating third party interest during continuation of 3 the suit. The order passed by the 4th Ad-hoc District Judge Jalna on 9-12-2009 has not been interfered with by this Court while dealing with separate writ petitions presented by the respective defendants. After full fledged hearing the suit has been dismissed by the trial Court. 2) It is pointed that the interim order of injunction granted on 9-12-2005 was operative during continuation of the suit. It is also pointed out that the defendant Nos.4,5 and 6 are purchasers of the property from defendant No.1 during continuation of the prohibitory order of injunction passed by the Court while dealing with the Misc. Civil Appeal. 3) The counsel appearing for the defendant Nos.4,5 and 6 contends that on 4 perusal of the judgment of the trial Court it is clear that the plaintiffs have failed to establish their case. It is also pointed out that the trial Court has also negatived the finding in respect of the possession of the plaintiffs over the suit land. The defendant nos.4,5 and 6 contend that they have received possession of the property after effecting the transaction in respect of sale on 7-10-2006. 4) The question that arise is as to whether such a sale effected in favour of defendant Nos.4,5 and 6 during continuation of the prohibitory orders can be recognized and whether any protection can be conferred on such transferee. In this regard reliance can be placed on para 26 of the judgment reported in Keshrimal Jivji Shah v. Bank of Maharashtra, 2004 (23) Mh.L.J. 893, which reads thus :-- 5 "26. We cannot accept Shri. Naphade's contention that observations of the Supreme Curt in the case of Surjeet Singh should be read as restricted to proceedings under Order 22, Rule 10 of Civil Procedure Code and the same cannot be extended to defiance of injunction order issued under Order 39, Rule 1 of Civil Procedure Code. Once the issue is placed on the pedestal of public policy and the very faith of litigants in Rule of law and administration of justice, then it is not possible to make the distinction or bifurcation suggested by Shri. Naphade. It would mean that consequences of nullifying such transaction not being provided by the Statute, it would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or order of injunction issue by a Court of law. It would mean that parties can breach and violate Court orders openly and with impunity and neither they nor the beneficiaries suffer any consequence. It is time that we recognize the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other 6 prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted then the tendency to flout orders of Courts which is increasing day by day can never be curbed. The Court exercises its powers on the foundation of respect and regard for its authority by litigating public. People would loose faith and respect completely if the Court does not curb and prevent this tendency. The note of caution of the Supreme Court must be consistently at the back of of everybody's mind. Therefore, Shri. Naphade is not right in the distinction which he is trying to make." Reliance can also be placed on paragraph 4 of the judgment in the matter of Surjit Singh vs. Harbans Singh, reported in AIR 1996 SC 135, which reads thus :-- “4. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent state of affairs to exist while it is in seisin of lis, that 7 state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.” 5) In view of the law laid down by the Apex Court as well as the observations made by the Division Bench of this Court in the reported judgment (cited supra), transfer of immovable property, in violation of an order of injunction or prohibition issued by Court of law,confers no right, title or interest in the transferee, as it is no transfer at all. In this view of the matter, the transfer effected in favour of defendant Nos.4,5 and 6 during continuation of the litigation and in violation of the prohibitory orders cannot be taken note of. As already stated above, there was a restraint order in operation during continuation of the suit and as such, the plaintiffs are entitled for continuation of 8 the similar restraint order which was in operation during continuation of the litigation. 6) The civil application, therefore, is required to be allowed and the same is allowed in terms of prayer clause (BB). No costs. (R.M. BORDE, J.) rsl/ ca.13409.09