1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NOS.10139 OF 2009 IN APPEAL FROM ORDER NO. 74 OF 2002 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri A.N.Nagargoje, Advocate for the applicant and Shri A.N. Sabnis, Advocate holding for Shri Amol Sawant for Respondent No.17. 2. Advocate for the applicant prays for stay of the order passed by this court on 22.9.2009 dismissing Appeal from Order No.74 of 2002. 3. The main question that arises for consideration is whether after the decision of Appeal from Order on 22.9.2009, on a subsequent date party to the proceedings can pray this court to grant the relief which was refused 2 while deciding the appeal from order. 4. Learned counsel for the applicant has filed this application on 23.9.2009. He submitted that this court has power under Order 45, Rule 13(2)(c) read with Section 151 of the Code of Civil Procedure, 1908. Rule 13 of Order 45 reads :- "13. Powers of Court pending appeal. (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs. (2). The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,- (a) impound any movable property in dispute or any part thereof, or security from the respondent as the Court thinks fit for the due performance of any order which [the Supreme Court] may make on the appeal, or (c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed 3 from, or of [any decree or order] which [the Supreme Court] may make on the appeal, or (d) place any party seeking the assistance of the Court under such conditions or give such other directions respecting the subject- matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise. " 5. It is evident that Section 13 speaks that the decree should be unconditionally executed notwithstanding the grant of a certificate for the admission of any appeal unless the court otherwise directs and sub-rule (2) of Rule 13 lays down conditions that can be laid down for staying execution or passing other appropriate order. Clause (c) of sub-rule (2) of Rule 13 states that while staying execution of a decree appealed from, the court can take security from the appellant for due performance of the decree appealed from 6. In the present case, the applicant-appellant is seeking a relief which was refused to him on merits 4 after hearing the Appeal from Order finally. In my considered opinion, therefore, Order 45 Rule 13 of C.P.C. does not apply to the facts of the present case. Moreover, after decision, the court becomes functus officio and it cannot exercise any power unless specifically provided and no such provision is shown to me. 7. Under the circumstances, it would not be proper to allow this application. Hence, the civil application is dismissed. Date:01/10/2009 (P.R.BORKAR, J.) pnd/ca10139.09