Bhavesh Pooj And Anr vs Jagdish Ramniklal Padia And Ors
2022 Latest Caselaw 12391 Bom

                                                              11.IA.688.21 wt. FA.121.21.doc



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                    INTERIM APPLICATION NO. 688 OF 2021
                                     IN
                        FIRST APPEAL NO. 121 OF 2021

Bhavesh Pooj & Anr.                     ...     Applicants/Appellants
                                        (Orig. Defendant No.2 and 2(a))
           Versus

Jagdish Ramniklal Padia & Ors.          ...      Respondents/Defendants



Mr. Sagheer A. Khan a/w Tanzila Kazi i/b Judicare Law Associates for the
Applicants/Appellants.
Mr. Rajendra R. Mishra for Respondent Nos.1 to 5.


                                  CORAM :      R.I. CHAGLA, J.
                                  DATED :      30th NOVEMBER, 2022.
ORDER :

1 Heard the learned Advocate for the parties.

2 By this Interim Application the Applicants/Appellants are

seeking stay of the operation and implementation of the judgment and

decree dated 15.02.2020 passed by the City Civil Court at Bombay in

Short Cause Suit No.7353 of 2006.

3 The Applicants/Appellants appear to be aggrieved with the

finding of the Trial Court that Defendant No.1 was not entitled to the sale

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11.IA.688.21 wt. FA.121.21.doc

or transfer of the entire flat from Defendant Nos.2 and 2(a) by virtue of

agreement of sale dated 18.03.2006. There was an issue of limitation

which has been held against the Defendants. The Applicants/Appellants

are seeking stay of paragraph 3 of the operative part of the order which is

a declaration that the Plaintiffs are entitled for vacant and peaceful

possession of their one half share in the suit flat from Defendant Nos.2

and 2(a) as prayed in the Suit.

4 The learned Counsel appearing for the Respondents who are

the Original Plaintiff Nos.1 to 5 in the Suit has objected to any stay is of

the operation and implementation of the impugned judgment and decree

dated 15.02.2020 being granted. He has submitted that it has been

rightly held by the Court below that the agreement of sale/sale deed

dated 18.03.2006 executed with one Rita Padia, Defendant No.2 in the

Sui by which Defendant No.1 has claimed that they are entitled to sale or

transfer of the entire suit flat is illegal and cannot be given effect to as

Defendant No.2 is not the owner of the entire Suit flat.

5 The learned Advocate for the Respondent / Original Plaintiff

Nos.1 to 5 has submitted that the Appellants were not even residing in the

suit premises. Accordingly, he has submitted that there is no merit in the

Interim Application.

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                                                                                          11.IA.688.21 wt. FA.121.21.doc




                             6            Having considered the Interim Application, it is noted that

the Interim Application has been taken out on 05.02.2021 which sought a

stay of the impugned judgment and order which had been passed on

15.02.2020. There is no explanation in the Interim Application as to the

delay in seeking stay of the impugned judgment and order passed by the

lower Court. Further, the agreement of sale/sale deed dated 18.03.2006

executed by Rita Padia, Defendant No.2 in the Suit in faovour of

Appellants has been held to be illegal and bad in law to the extent of one

half share of the Plaintiffs in the suit flat. Thus, it has been held that the

entire suit flat could not have been sold to the Appellants. Further, it is

the case of the Original Plaintiff Nos.1 to 5 that the Appellants were not

residing in the suit flat after Claimants purchased the suit flat.

7 At this stage there can be no stay the operation and

implementation of the judgment and decree dated 15.02.2020 passed by

the trial Court in Short Cause Suit No.7353 of 2006.

8 Interim Application is accordingly disposed of.

(R.I. CHAGLA, J.)

Digitally signed by WAISHALI SUSHIL WAISHALI WAGHMARE SUSHIL Date:

WAGHMARE 2022.12.03
          11:06:41
          +0530
                             Waghmare                                                                              3/3