Khozema Tayebali Tawawala v. Ibrahim Gulamhusein Tawawala (Deceased) Thr.L.R.S.1.1)Asmabai Wd/O Ibrahim Tawawala And ORS.

33-ia2712-2022 in fa429-2022.doc AGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO.2712 OF 2022 IN FIRST APPEAL NO.429 OF 2022 Digitally signed by ATUL GANESH KULKARNI Date:

2023.02.14 10:46:47 +0530 ATUL GANESH KULKARNI Khozema Tayebali Tawawala ... Applicant V/s.

Ibrahim Gulamhusein Tawawala, deceased through L.R.s.

Asmabai wd/o Ibrahim Tawawala & Ors. ... Respondents Mr. Sachindra Shetye with Mr. Ashwin Bhadang, Mr. Robin Fernandes, Mr. Aayush Shah and Ms. Halima Merchant for the applicant.

Mr. Rajesh Kachare with Mr. Amit Potnis and Mr. Sandeep Suryavanshi i/by Tamhane & Co. for respondent no.1.

CORAM :AMIT BORKAR, J.

DATED :FEBRUARY 13, 2023 P.C.:

1.

During the pendency of the suit, this Court by order dated 27th July 2001 rejected application of the plaintiff restraining defendants from creating third party rights, however, made such transfer of third party subject to the decision in the suit. 2.

The suit of the plaintiff has been dismissed by the impugned judgment. The first appeal is admitted.

3.

Since during the pendency of the suit, there was no interim

33-ia2712-2022 in fa429-2022.doc relief restraining defendants from creating third party rights, the plaintiff cannot be placed in a better position after dismissal of the suit. Therefore, relief restraining defendants from creating third party rights in terms of prayer clause (b) cannot be granted; however, creation of third party rights created during the pendency of the appeal shall always be subject to protection under section 52 of the Transfer of Property Act, if it is satisfied that the ingredients of section 52 of the Transfer of Property Act are satisfied. 4.

In that view of the matter, the interim application is disposed of in terms of aforesaid observations. No costs. (AMIT BORKAR, J.)