1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.116 OF 2009 (CONVERTED FROM C.R.A. NO.54 OF 2009) Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard applicant who is party in person and Shri Satyajeet Bora, Advocate, for the Respondent. 2. At the outset, learned counsel for Respondent submitted that present C.R.A. is not maintainable as the impugned order dated 5.3.2009 passed by District Judge-I,Parbhani, below Exhibit 6 in R.C.A. No.80 of 2008 is interlocutory in nature since by that order interim stay is to continue till decision of the appeal. There is merit 2 in the submission. At this stage the applicant in person prays the court to treat present C.R.A. as Appeal from Order. Prayer allowed. C.R.A. is allowed to be converted into Appeal from Order and the same is numbered as A.O. no.116 of 2009. 3. Briefly stated, the facts giving rise to this appeal from order are that, R.C.S. No. 90 of 1985 is filed by present appellant for perpetual injunction against present respondent Municipal Council, Parbhani and the Maharashtra State Electricity Board defendant Nos. 1 and 2 respectively). The subject matter of the suit was plaintiff-appellant's house No. 888 (old No.726) situated in Ward No.15 (old ward No.14) at Shivaji Nagar, Basmath Road, Parbhani. 3 4. The suit came to be allowed as against the Municipal Council-present Respondent No. 1 and it was restrained from constructing drainage through courtyard from plaintiff's house and thus restrained it from connecting the eastern and western ends of existing drain through the plaintiff's courtyard. 5. Alleging that there was breach of the said order, application under Order 21 Rule 32 of the Code of Civil Procedure, 1908 was filed by plaintiff. It was treated as Regular Darkhast No. 50 of 2008. Thereafter, Respondent filed Regular Civil Appeal No.80 of 2008 in the District Court, Parbhani and also application for stay of execution of the decree passed in 4 R.C.S. No.90 of 1985 till decision of the said R.C.A. It may also be stated at this stage that since there was delay in filing appeal, application seeking condonation of delay was filed which came to be allowed. Challenge to the said condonation of delay was rejected by the High Court. Present appellant stated that he has challenged the said order of the High Court before the Supreme Court and it is pending. 6. This appeal from order is directed against the order passed by the District Judge on 5.3.2009 on application below Exhibit 6 in R.C.A. No.90 of 2008, thereby staying execution of decree passed in R.C.S. No.90 of 1985. 5 7. The appellant stated that there was no necessity to grant stay to the execution as the decree of injunction is not executable decree. He also relied upon the case of Rampyaribai vs Niladevi 2007 (4) Mh.L.J. 213. Therein, it is observed that the proceedings for breach of injunction should be treated as independent proceedings and should be registered as Miscellaneous Judicial Case and not Regular Darkhast and it should be tried separately by framing appropriate issues. 8. But, that would be an argument regarding Regular Darkhast No. 50 of 2008 filed by present applicant. The proceedings before this court do not relate to the said Regular Darkhast No. 6 50 of 2008 as such directly. The main question raised in this case is whether there was sufficient justification for the learned District Judge to stay execution of decree of perpetual injunction passed by the trial court in R.C.S. No.90 of 1985. It is not disputed that for breach of decree of injunction remedy under Order 21 Rule 32 of C.P.C. is available and, in fact, present appellant has filed application under Order 21 Rule 32 and the copy of the same is produced at Exh. "C" with present proceedings. 9. In paragraph 3 of his order on application below Exh.6 in R.C.A. No.80 of 2008, the learned District Judge has stated that the suit property was not properly described in the plaint and it is not executable decree. The disputed 7 property was described as "courtyard in front of house of the plaintiff" and adverse possession was claimed. 10. Learned Counsel for the Respondent relied upon Article 111 of the Limitation Act, 1963 and submitted that the trial court on the face of its order committed error in holding in paragraph 48 of its judgment that the plaintiff has perfected his title over disputed courtyard by adverse possession. The plaintiff claimed adverse possession from 1967 and filed suit in 1985, whereas as per Article 111 of the Limitation Act, the period of limitation is of 30 years. Be that as it may. 8 11. The District Court has further observed that no prejudice would be caused if stay is granted as the question of laying drainage pipeline is a question relating to hygiene of the public. The question, whether the respondent has right to lay pipeline will be decided in the appeal itself. 12. Considering the facts and circumstances of the case, I in my opinion, the view taken by the District Court is a reasonable and proper view As far as R.D. No.50 of 2008 is concerned, learned Counsel for Respondent argued that the only intention behind filing said Darkhast proceeding is to keep the Chief Officer or some officer of Respondent in jail and attach municipal property. But, that will not solve the problem of 9 appellant because he admits that the drainage line from both sides come upto disputed property and there is only question of taking drainage line through his property. In the circumstances, no interference in the impugned order is called for. Hence, Appeal from Order is dismissed. Date:16/09/2009 (P.R.BORKAR, J.) pnd/ao116.09