(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1) The present application is for interim stay, pending first appeal against the judgment and decree passed by the Trial Court for specific performance of contract.
2) We have heard Mr. Kamal M. Sojitra, learned counsel for the applicants-appellants and Mr. P.P. Majmudar, learned counsel for the respondents.
3) As the appeal has already been admitted on 24.4.2012, if the execution of the decree for specific performance of contract is not stayed, it may create irreversible situation. It also appears that the respondents are in possession of the property and the applicants are not in possession of the property. Even as per the plaint and the evidence on record, out of the total amount of Rs.42,17,600/-, Rs.11,00,000/- was stated to have been paid at the time of agreement to sell and the remaining amount of Rs.31,17,600/- was to be paid. The Trial Court has not examined the aspects of capacity of the plaintiffs to pay the amount while examining as to whether the plaintiffs were ready and willing to perform the contract or not.
4) Hence, the following order:
By interim order, the execution and implementation of the judgment and decree of the Trial Court shall remain stayed on condition that the appellants as well as the respondent Nos. 1 to 3/original plaintiffs shall maintain status-quo of the property including that the appellants shall not transfer or alienate the title and the respondents/original plaintiffs shall also maintain status-quo including that they shall not transfer or alienate the possession of the property. It is also observed that it would be open to respondent Nos.1 to 3/original plaintiffs to deposit the amount of Rs.31,17,600/- with the Trial Court to show their ability/capacity to pay the consideration. If such amount is deposited with the Trial Court, the same shall be invested by the Trial Court in the Fixed Deposit Receipt with the Nationalized Bank initially for a period of three years and such investment shall be renewed from time to time until the appeal is finally disposed of.
5) The application is disposed of accordingly. Rule is made absolute to the aforesaid extent.
(JAYANT PATEL,J.) (C.L.SONI,J.) Vahid Top