1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3006 of 2006 IN WRIT PETITION NO. 3955 of 1999 WITH WRIT PETITION NO. 3955 OF 1999 Tirathdas Bherumal Mansinghani .. Applicant versus Devendra Babulal Rao & ors. .. Respondents ... Mr.T.D. Deshmukh for the applicant. Mr.D.B.Sawant for respondent no.5. CORAM : A.M.KHANWILKAR, J DATED : 23rd July 2008 P.C.: 1. None appears for the writ petitioner. This application was listed yesterday. However hearing was deferred as it was noticed that the appearance of advocate for the petitioner was not mentioned on the board. Today even though the appearance of advocate 2 for the writ petitioner is notified, none appears for the writ petitioner. The application is for relief of vacating stay order dated 20th July 1999. Counsel for the applicant has rightly placed reliance on the reported decision in the case of Krishna Awaji Ghadge Vs. Bapu Kalu Ghadge & ors. reported in AIR 1959 Bom 490. The principle stated in this decision applies on all fours to the case on hand. In the present case, the writ petition takes exception to the judgement and order passed by the court below directing restitution of possession of suit premises to the applicant defendant. The defendant was dispossessed from the suit premises in execution of the decree which was passed ex-parte against the defendant. That decree, however, has been set aside. As a logical order, while setting the ex-parte decree, the court has ordered restitution of possession of the suit premises to the defendant. That order will have to be given effect to forthwith in view of the legal position stated in the above judgement. The fact that some third party has been put in possession is a matter which may be considered at the appropriate stage. For the time being, the interim order granted by this court will have to be vacated in view of the settled legal position. Accordingly, this application ought to succeed in terms of prayer clause (b). As that is the limited 3 grievance made in the writ petition, in my opinion, nothing would survive for consideration in the writ petition. 2. In the circumstances, civil application is allowed in terms of prayer clause (b) and at the same time, writ petition is dismissed. (A.M.KHANWILKAR, J)