1 wp7139.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7139 OF 2010 Kanta Raghunath Yadav ...Petitioner vs. Ramdas Govind Ambokar Pujari & Anr. ...Respondents Mr.C.K.Tripathi for the petitioner Mr.Mohan Jadhav for the respondent no.1 CORAM :A.S.OKA,J. DATE : OCTOBER 21, 2010 P.C.: 1 Heard the learned counsel for the petitioner. The petitioner is an obstructionist who obstructed the decree for possession passed by the Court of Small Causes against the 2 nd respondent. The second respondent- Judgment Debtor is the real brother of the petitioner. It appears that the present petitioner made an application in execution application filed by the first respondent contending that he is the owner of the suit shop premises and therefore, the warrant of possession cannot be executed as against him. It appears that on the basis of the said application, an adjudication was made by the Executing court. Before the Executing Court, the petitioner relied upon a Deed of Conveyance dated 25 th November 1988 on the basis of which he claimed to have purchased the suit shop along with others including the second respondent-Judgment Debtor. The application made by the petitioner was rejected after adjudication by holding that the petitioner has not established independent right to occupy the suit shop premises. An 2 wp7139.sxw appeal was preferred by the petitioner before the Appeal Bench of Court of Small Causes. The application for stay made by the petitioner has been rejected by the Appeal Bench of Court of Small Causes by passing the impugned order. The learned counsel for the petitioner submitted that substantive appeal preferred by the petitioner was admitted by the Appeal Bench of Court of Small Causes and therefore, stay of execution of decree ought to have been granted. He submitted that after having admitted the appeal, the Appeal Bench of Court of Small Causes could not have dismissed the application for stay as no purpose will be served by admitting the appeal. He has tendered a compilation consisting of a true copy of plaint in L.C.Suit No.3676/1990 filed by the first respondent- plaintiff against the second respondent and others. He submitted that the aforesaid conveyance was challenged by the first respondent by filing the suit and the suit has been withdrawn. He, therefore, submitted that conveyance on which the petitioner is relying upon is binding on the plaintiff-first respondent. 2 I have carefully considered the submissions. Merely because an appeal is admitted, the Appeal Bench cannot mechanically grant interim relief of stay especially when the petitioner is an obstructionist and the appeal arises out of the proceedings taken out by the obstructionist in the execution of the decree passed in the suit of the year 1996. 3 It appears that the decree for eviction passed against the second respondent was challenged by the second respondent (original defendant) by filing a civil revision application in this Court. It is not in dispute that the second respondent-Judgment Debtor who is brother of the petitioner placed reliance on the same conveyance 3 wp7139.sxw for contending that he has become the owner of the suit property on the basis of the said conveyance. Perusal of the paragraph 4 of the order dated 10 th December 2009 passed by this Court in the said civil revision application shows that this Court did not accept the conveyance and rejected the case made out by the second respondent on the basis of the conveyance. 4 It is pertinent to note that the second respondent- Judgment Debtor is a real brother of the petitioner and the petitioner is now claiming on the basis of the same conveyance. A copy of the plaint in the suit filed by the first respondent and order passed thereon was admittedly not placed on the record of the Executing Court or the Appellate Court. Considering these peculiar facts, it is not possible to interfere with the discretionary order passed by the Appellate Court by rejecting the prayer for stay. 5 It is true that the appeal is pending. The petitioner can be protected by directing that even if the possession is taken over by the first respondent, it will be subject to final outcome of the appeal and till the appeal is decided, the first respondent will not part with possession thereof and will not create any third party rights. 6 Hence, the petition is disposed of by passing the following order : i) Impugned order passed by Appeal Bench is confirmed. ii)If the first respondent takes over possession in execution of the decree, his possession will be subject to final outcome of the appeal. iii)The first respondent shall not create third party 4 wp7139.sxw rights and shall not part with possession in respect of the suit premises till the disposal of the appeal. iv)It is made clear that the observations made by the Appeal Court and this Court are for limited purposes of considering the prayer for stay and all contentions of the petitioner on merits of the appeal are kept open. v) Prayer for continuation of ad-interim relief is rejected. JUDGE