[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6109 OF 2008 Shri Waman Nivruti Kasbe .... Petitioner Vs. Shri Eknath Mahadu Kasbe, since deceased, through LRs a) Smt. Sitabai Eknath Kase & Ors. .... Respondents Shri R.D. Soni i/b M/s. Ram & Co. for the Petitioner. Shri Shriram S. Kulkarni for Respondent Nos.1a to 1e. CORAM: CORAM: CORAM: ANOOP V. MOHTA, J. DATED: DATED: DATED: DECEMBER 12, 2008 ORAL ORDER: ORAL ORDER: ORAL ORDER: 1. The petitioner who is the plaintiff has challenged the findings of both the Courts below as both the Courts, after considering the materials on record, held that the plaintiff/petitioner failed to prove strong prima facie case and there is no balance of convenience in favour of the plaintiff. The respondents will suffer irreparable loss if injunction as sought is granted. 2. In the suit filed by the plaintiff, the basic prayers are to set aside the decree passed in R.C. Suit No.818 of 1996 and the execution proceedings being Regular Darkhast No.207 of 2002 on a foundation that the [2] suit so decreed covers the property which was not the subject-matter of the said decree. 3. In para 1A while decreeing the property in that suit, reference is made to Survey No.75/1 with area of 5 hectare and 77 ares and Rs.13.12 ps.. Therefore, the area of Survey No.75/1 nowhere covers the area of 5 hectares and 77 ares. It is only when Survey No.75/2 added completes the area of 5 hectares and 77 ares. The submission that the suit nowhere covers Survey No.75/1 for want of proper description is a matter of trial and/or detail inquiry, if any. Admittedly, the petitioner was not a party to the said proceedings but still the fact remains that there is a decree with regard to Survey No.75/1 covering the area of 5 hectares and 77 ares. 4. In this background, even if there is challenge made to the said decree and/or the execution at this stage, unless it is decided, both the Courts below, in the facts and circumstances of the case, rightly refused to grant any protection, as prayed for. 5. Both the Courts below have considered this aspect as there is admittedly no reference made to Gat No.75/2. Both the Courts have considered all the documents and the decree also, as referred above and, [3] therefore, held that the petitioner failed to prove strong prima facie case to stay the decree as well as the execution in question. 6. Therefore, without observing further on the merits of the matter at this stage as there is no perversity in the order and as the same is within the framework of law and, therefore, I see there is no reason to interfere with the impugned order. The petition is accordingly dismissed. However, it is made clear that if the petitioner wants to withdraw the present suit and decides to file appropriate proceedings, any observation made at this interlocutory stage should not affect the main trial or proceedings, if the petitioner chooses to file the same and the Court may decide the same in accordance with law, and it is subject to objection of either side. 7. The learned counsel appearing for the petitioner seeks extension by four weeks of the interim order as already granted on 2-9-2008. It is extended by four weeks only. . The petition is disposed of accordingly. No costs. (ANOOP V. MOHTA, J.) [4] sjs/D8wp6109.8 sjs/D8wp6109.8 sjs/D8wp6109.8