1 1663.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1663 OF 2011 IN FIRST APPEAL NO.813 OF 2011 Abdul Kadar S/o Abdul Rehman Deshmukh ...Appellant Versus Ravindra @ Ravi Kastia S/o.Jaharmal Kastia & Ors. ...Respondents WITH CIVIL APPLICATION NO.1112 OF 2011 IN FIRST APPEAL NO.941 OF 2011 Fathru Saheb Patel ...Appellant Versus Ravindra @ Ravi Kastia Jaharmal Kastia & Ors. ...Respondents WITH CIVIL APPLICATION NO.1835 OF 2011 IN FIRST APPEAL NO.941 OF 2011 Ravindra @ Ravi Kastia S/o.Jaharmal Kastia & Ors. ...Applicants Versus Fatru Patel s/o Saheb Patel & Ors. ...Respondents AND CIVIL APPLICATION NO.1836 OF 2011 IN FIRST APPEAL NO.813 OF 2011 Ravindra @ Ravi Kastia s/o. Jaharmal Kastia & Ors. ...Applicants Versus Abdul Kadar S/o Abdul Rehman Deshmukh & Ors. ...Respondents 2 1663.11 Mr.P.S.Dani with Mr.M.S.Topkar for Applicants in CA/1663/2011. Mr.M.S.Karnik for Applicants in CA/1112/2011. Mr.Aspi Chinoy, Senior Advoate with Mr.Vineet Naik i/b Mr.S.Kulkarni for Applicants in CA Nos.1835/2011 & 1836/2011. ...... CORAM:- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR, JJ. DATED:- MAY 6, 2011. P.C. 1. Civil Application Nos.1112/2011 and 1663/2011 have been filed by original defendant No.1 for stay of operation of the decree of specific performance passed by the Trial Court. Whereas, Civil Application No. 1835/2011 is filed by the original Plaintiff in First Appeal No.914/2011 which has been filed by original defendant No.9 for appointing Court Receiver in respect of the property in dispute. Civil Application No. 1836/2011 is also for the same relief filed by the plaintiff in First Appeal filed by the original Defendant No.1. In the circumstances, we think it appropriate to dispose of all the four applications together by this common order. 2. By separate order passed today, we have already admitted the two First Appeals filed by the original defendant No.1 and original defendant No.9 respectively. The decree which is impugned in the Appeals by the said 3 1663.11 defendants is for specific performance of the agreement whereunder the said defendants are directed to execute Sale Deed in favour of the plaintiff in respect of the disputed property. As the Appeals are admitted, it presupposes that prima facie case has been made out by the defendants for admission of Appeals. As a necessary consequence thereof, it would be appropriate to grant interim relief of stay of operation of the impugned Judgment and Decree passed by the Trial Court. However, the further question which arises for our consideration is: whether the said relief should be conditional or unconditional one? Even though the defendant Nos.1 and 9 are entitled for relief of stay of operation of the decree of specific performance, we would not hesitate in imposing condition on the said defendants to refrain from creating third party right, title interest in the disputed property during the pendency of the Appeals. 3. In the present matters, however, the plaintiffs have brought on record that inspite of order of status-quo passed by the Trial Court on 3rd March, 2007, which was confirmed by this Court and which operated during the pendency of the trial, the defendant No.9 entered into three separate transactions on different dates - one with Mr.Doshi and other with Mr.Digambar Patil and one with himself in respect of the disputed property. 4 1663.11 Indeed, the Counsel for the defendant No.9 has stated on instructions that the said defendant would undertake before this Court that he will not enter into any other transaction and maintain staus-quo of the suit property as of today. However, we are in agreement with the stand taken by the Counsel for the plaintiffs that considering the background of the case and the conduct of the defendants, it may be appropriate to appoint the Court Receiver without any payment of royalty. That would obviate any further controversy in respect of the disputed property during the pendency of Appeals. 4. Accordingly, all the four applications are disposed of on the following terms: (1)The operation of the impugned Judgment and Decree passed by the Trial Court dated 29th November, 2010 in Suit No.298/2006 shall remain stayed during the pendency of the appeals. (2)The Court Receiver, High Court of Bombay is appointed to act as Receiver in respect of the disputed property without any royalty and security required to be paid by the defendant Nos.1 and 9 who claim to be in possession of the disputed property. They are appointed as agents of the Court Receiver. 5 1663.11 (3)We clarify that the Court Receiver shall remain in symbolic possession of the disputed property till further orders. (4)The statement made by the defendant Nos.1 and 9 through Counsel that neither they nor through any other person claiming through them would permit or encourage unauthorised sand mining activity in the suit property, is accepted. (5)The said defendants assure through their respective Counsel that the order passed by the Tahsildar about the alleged unauthorised sand mining activity carried out at the disputed property will be assailed before the appropriate forum by them and necessary compliance as may be required by the said authority would be done by them. That assurance is also accepted. (6)The amount deposited by the plaintiff in the Trial Court in the sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs Only) shall be forthwith invested in appropriate fixed deposit scheme, if already not invested, which shall enure till the pendency of these Appeals or such other further orders to be passed by this Court. 6 1663.11 5. Applications disposed of on the above terms. (MRS.MRIDULA BHATKAR, J.) (A.M.KHANWILKAR, J.)