:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 4532 OF PETITION NO. 4532 OF PETITION NO. 4532 OF 2008 2008 2008 Santosh Purushottam Dhawad. ... Petitioner. V/s. Dnyandeo Maruthi More & Another. ... Respondents. WITH WITH WITH WRIT WRIT WRIT PETITION NO. 8344 OF 2008 PETITION NO. 8344 OF 2008 PETITION NO. 8344 OF 2008 Santosh Purushottam Dhawad. ... Petitioner. V/s Jalindar Vishwanath Londe & Anr. ... Respondents. Mr. Surel S. Shah for the Petitioner. Mr. P.S. Dani for the Respondents. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 24TH 24TH 24TH APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . The First Writ Petition is directed against an order passed (below Exhibits 17 and 28) in Civil Appeal No.86 of 2007. 2. There, an application was filed by the Original Appellant No.2, who is Respondent No.2 to this Writ Petition praying for stay to the execution of decree dated 8th October 2004 in Special Civil Suit No.43 of 2001 passed by the learned Civil Judge, Junior Division. 3. The grievance of Mr. Shah, learned Counsel appearing for the Petitioner - Decree Holder is that the decree has already been executed inasmuch as on the :2: refusal of the Original Defendant No.1 and Respondent No.1 to this Writ Petition to convey the property, Court Commissioner was appointed with a direction to execute the sale deed of the property in favour of the Petitioner. The copy of the same was produced so also Respondent No.2 was allowed to participate in the proceedings only on the condition that he will not seek stay of the execution of decree. Therefore, there was no occasion for the Courts below to have granted a stay of execution. That has been done by the impugned order and therefore, the same be vacated and set aside. 4. The contesting Respondent is Respondent No.2 and Mr. Dani, learned Counsel appears on his behalf. It is contended by filing an affidavit in reply that the Civil Suit from which the appeal arose was dismissed for default on 17th January 2002. There was no notice issued regarding restoration of the said suit. Thereafter, on 28th January 2004, a Registered Sale Deed was executed in favour of Respondent No.2 by Respondent No.1. The name of Respondent No.2 has been entered in the 7 x 12 extracts of the Suit land and he has been put in possession. Even then and when all this was to the knowledge of the Original Plaintiff - Petitioner, he did not implead the Second Respondent as a party Defendant to the Suit. The written statement was also not filed by the First Respondent till 12th July 2004. In the meanwhile, the decree was passed in favour of the Petitioner - Plaintiff :3: and he filed Special Darkhast so also hurriedly got the Sale Deed executed in his favour through the Court Commissioner. The First Respondent filed Civil Appeal and in which an application was made for joining the Second Respondent as an Appellant and it came to be allowed and this order is subject matter of challenge in the other Petition. 5. Therefore, Mr. Dani would submit that this is a fit case where the Lower Appellate Court was in no error in granting an interim stay to the execution of the decree. In any event , if this Court is of the opinion that the order could not have been passed in the form in which it has been made, then, this Court may appropriately modify the same considering the facts and circumstances but in no case the Court should permit the proceedings to be defeated and frustrated. 6. Upon this Petition, this Court had issued notice on 26th July 2008 and thereafter, it was directed to be listed for final disposal. There does not appear to be any ad-interim protection. 7. However, the Petitioner in Writ Petition No.8344 of 2008, challenges the order passed by the Court below, joining the Second Respondent as Appellant No.2 to the Appeal. This Court had directed that both Petitions be taken up together considering the peculiar nature of the :4: controversy. 8. I have heard both sides at some length. In the light of the fact that the Second Respondent claims to have purchased the property which is the subject matter of the Suit from which the Appeal arose, in my view, his pleas being somewhat distinct from that of the original parties, interest of justice would be subserved if he is permitted to adopt substantive proceedings. In other words, he may file his own Appeal. In these circumstances, Jalindar Vishwanath Londe - Respondent No.2 to Writ Petition No.4532 of 2008 and Respondent No.1 to Writ Petition No.8344 of 2008 is permitted to file his own Appeal challenging the decree passed in the Suit instituted by the present Petitioner. All pleas of the said Jalindar are kept open. Mr. Dani prays for leave to file an Appeal, as the said Jalindar is not party to the Suit. Mr. Shah states that he has no instructions. 9. The Lower Appellate Court having allowed the said Jalindar to become a party to the subject Appeal on 18th February 2008 and that order is also under challenge before me, yet it remained in force in all this period, in my view, interest of justice would be subserved if leave to file an Appeal is granted to the said Jalindar provided, he files an Appeal within a period of two weeks from the date of receipt of the copy of this order. Both Writ Petitions are disposed off in these terms. Till the :5: Appeals preferred before the Appellate Court are disposed off, parties will maintain status-quo as of today. Needless to state that the order of status-quo will also be for the benefit of said Jalindar provided he files an Appeal within the period directed above. Both Appeals shall be taken together and disposed off by a common Judgment. Needless to state that considering the liberty granted by me and in facts peculiar to this case, the Lower Appellate Court will condone the delay in filing the Appeal by said Jalindar, provided, he files the Appeal within the stipulated period. The Lower Appellate Court to endeavour and dispose off the matter as expeditiously as possible and by 31st August 2009. Appeal memo in the Appeal No.86 of 2007 preferred by Respondent No.1 before me be allowed to be amended and Appellant No.2 therein, Jalindar V. Londe should be impleaded as a party Respondent thereto. The said amendment be also carried out within the aforesaid period. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)