(1.) This is an application filed by the appellants-original plaintiffs for stay of the impugned judgment and decree passed by the Courts below and for restraining the opponents, as defendants and servants from transferring and/or alienating the disputed land during the pendency and disposal of the main second appeal.
(2.) Heard learned advocate Mr. Hriday Buch for the appellant and learned senior counsel Mr. Ansin Desai for Mr. Jignesh Kapadia for the respondents. Perused the material placed on record and the decisions cited at bar.
(3.) Learned advocate Mr. Hriday Buch has submitted that the suit came to be dismissed on the other grounds, however, the factum of agreement to sale has been believed. He has submitted that the Courts below have declined to grant specific performance of the contract on the ground that the land in question is a new tenure land. He has submitted that there are various decisions to the effect that even in the case of new tenure land, decree for specific performance could be passed. He has submitted that the appellant only want status quo qua the possession of the land in question in relation to the ownership and possession, otherwise, if during the pendency of the appeal, property is transferred to third party then irreparable loss would be caused to the appellant. Learned advocate Mr. Hriday Buch for the appellant-applicant has vehemently submitted that the plaintiff has filed a suit for specific performance of agreement to sale and the Trial Court has partly allowed and directed to refund the amount of earnest money. However, it has rejected that relief of specific performance of agreement to sale. He has also submitted that the appellate Court has confirmed this order. Mr. Buch has submitted that since the Second Appeal has already been admitted on the substantial questions of law, if during the pendency of the Second Appeal respondent transfers the land in question, then, there will be irreparable loss caused to the appellant-plaintiff and therefore in the interest of justice, status quo qua the land in question needs to be maintained. He has prayed to allow the present petition. He has relied upon the decisions of the Apex Court in case of Ferrodous Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead)AIR 2020 SC 5041, especially para 21, which reads as under:-