Pratapsing Kondiba Bhais And ANR. v. Lilavati Balu @ Balusing Bhais And ORS.

902.wp.18502.15.doc ingale

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION WRIT PETITION STAMP NO. 18502 OF 2015 Pratapsing Kondiba Bhais and another ...

Petitioners Vs.

Lilavati Balu @ Balusing Bhais and others ...

Respondents Mr.Sachin K.Hande, Advocate for Petitioners.

CORAM :

R. G. KETKAR, J.

DATE : 24th JULY, 2015 P.C. :

.

Heard Mr.Sachin K.Hande, learned Counsel for the the petitioners at length.

2.

By this Petition under Article 227 of the Constitution of India, petitioners­appellants in the District Court have challenged the order dated 20/01/2014 passed by the learned Additional District Judge, Malshiras below Exhibit 5 in Civil Appeal No. 47 of 2013. By that order, the learned District Judge stayed the judgment and decree dated 26/08/2013 passed by the learned 2nd Joint Civil Judge, Junior Division, Malshiras in Regular Civil Suit No. 869 of 2000 in respect of handing over possession to the parties till final disposal of the Appeal.

3.

In support of this Petition, Mr.Hande submitted that respondents No. 1 to 4 herein had instituted Regular Civil Suit No. 869 of 2000 for partition and separate possession. The Suit is 1/2

902.wp.18502.15.doc decreed by the trial Court on 26/08/2013. Aggrieved by that decision, petitioners herein have preferred Appeal. Pending the Appeal, they took out application at Exhibit 5 for stay of the trial Court's decree. Mr.Hande submitted that the learned District Judge, however, did not grant injunction restraining the respondents from creating third party interest. Perusal of the application at Exhibit 5 shows that the petitioners have prayed only for stay of the trial Court's decree. Having regard to the fact that decree is passed in a partition Suit, the learned District Judge had stayed decree only in respect of handing over of possession to the parties. In other words, the learned District Judge did not stay partition proceedings. In view thereof, the partition proceedings will go on save and except handing over of possession. As the petitioners did not file application praying for injunction, there was no question of learned District Judge's considering such prayer.

4.

In view thereof, I do not find the learned District Judge committed any error in passing the impugned order. Hence, Petition fails and the same is dismissed reserving liberty to the petitioners to take out application for injunction restraining respondents from creating third party interest. If such application is taken, the learned District Judge will consider it on its own merits and grant of such liberty shall not be construed as expression of opinion on merits. (R. G. KETKAR, J.) 2/2