IMPORTANT POINT
An agreement to sell does not create an interest in property and does not breach an undertaking unless actual sale or transfer occurs.

JUDGMENT :

SANDIPKUMAR C. MORE, J.

1. The present appellants, who are the original defendant Nos. 3, 4 and 5 have challenged the order dated 18.01.2019, passed by the learned Civil Judge, Senior Division, Aurangabad (herein after referred to as “learned trial Court”) below Exh.292 in Special Civil Suit No. 160 of 2001. Under the impugned order, the learned trial Court, by partially allowing the aforesaid application below Exh.292, has struck off the defence of the present appellants in the said suit as per Order XXXIX Rule 11 of the Code of Civil Procedure.

2. The brief facts giving rise to the present appeal are as under:

The present respondent Nos. 1 and 2 have filed Special Civil Suit No. 160 of 2001 against the present appellants as well as respondent No. 3 for specific performance of contract in respect of agricultural lands bearing Gut Nos. 117 and 117/1, admeasuring 9 Acres 15 Gunthas situated at Nakshtrwadi, Aurangabad. According to respondent Nos. 1 and 2/plaintiffs, the present respondent Nos. 3 and 4, who are the original defendant Nos. 1 and 2, had failed to perform their contractual obligations towards them under the agreement for sale dated 06.12.1999 and therefore, the aforesaid suit was filed. During the pendency of the aforesaid suit, the original plaintiffs came to know that the original defendant Nos. 1 and 2 entered into an agreement to sale with the present appellants i.e. defendant Nos. 3 to 5 and sold the area of 6 Acres 7 Gunthas out of the suit lands to them. As such, the present appellants were made party to the suit and then respondent Nos. 1 and 2 filed application (Exh.68) for getting temporary injunction against all the defendants.

3. The learned trial Court, vide, order dated 20.07.2002, decided the said application (Exh.68) and restrained all the defendants, who are the present appellants and respondent Nos. 3 and 4 from selling, alienating or creating any third party interest over the suit land till disposal of the main suit.

4. Being aggrieved with the said order dated 20.07.2002, the present appellants had preferred Appeal from Order No. 391 of 2003 before this Court on 01.12.2003. However, the said appeal was disposed of on 14.12.2004, in view of undertaking given by the present appellants before this Court assuring thereby that they would not sell, transfer or alienate the suit property without prior permission of the Court. By accepting the said undertaking, this Court had set-aside the order passed by the learned trial Court dated 20.07.2002, below Exh.68.

5. However, despite such undertaking given by the present appellants before this Court, they entered into an agreement to sale with third party i.e. M/s Aishwarya Constructions in respect of sale of land admeasuring 6 Acres 7 Gunthas out of suit property without prior permission of the Court. As such, the original plaintiff Nos. 1 and 2 were constrained to file application at Exh.292 against the appellants under Order 39 Rule 11 of the Code of Civil Procedure for striking out their defence and also for taking action against them as per Section 94 (c) (d) and (e) of Code of Civil Procedure.

6. Feeling aggrieved with the said order dated 18.01.2019, below Exh.292, the appellants have preferred this Appeal.

7. The learned Senior counsel for the appellants submits that the learned trial Court has passed complete erroneous order of striking out the defence of appellants by holding that they committed breach of undertaking given to this Court only on the basis of alleged agreement to sale executed by them in favour of one M/s Aishwaraya Constructions. According to him, the undertaking was given by the appellants to this Court for not to sell or alienate the suit property, however merely by executing the agreement to sale with M/s Aishwarya Constructions, no actual alienation or transfer of interest in the suit property was made. He pointed out that even the said agreement of sale was cancelled by the appellants, and therefore, no sale-deed was execute