Case: Mani K. Shah &amp; Another Vs. Satnam Apartments Limited &amp; Others

2. For the sake of convenience, the parties are hereinafter referred to by their original status in the suit.3. The plaintiff is a company registered under the provisions of the Companies Act, 1956 and defendant Nos.1 and 2 are its members and are flat holders. It appears that the company is formed by the flat holders in the building and one of the objects of the company is to look after the maintenance of the building. All members pay the maintenance charges to the plaintiff.4. The defendant Nos.1 and 2, who are the owners of the flat are not personally occupying the flat but have let it out to defendant No.4. The defendant Nos.1 and 2 have filed a suit for eviction of defendant No.4 in the Small Cause Court, Mumbai, but we are concerned for the said litigation in this appeal.

Reasoning:
t may be noted that no application was made under Order 38 Rule 5 of the Code of Civil Procedure. There are no averments justifying passing of any order restraining the defendants from transferring the flat. Under Section 6 of the Transfer of Property Act, every property is transferable and no restriction on the right of the defendants to transfer the property could have been placed in the absence of any ground for restraining the defendants from transferring theour considered view this prima facie conclusion could not have been arrived at when the defendants had specifically disputed the liability to pay non occupancy charges. Furthermore, directing to pay non occupancy charges during the pendency of the suit would virtually amount to finally decreeing the suit even before the trial. in our view, an order for payment of non occupancy charges could not have been passed at an interlocutory stage.