1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2502 OF 2009 Kulin Chhotalal Bole & Ors. ..Petitioners versus Henemdra Girdharilal Bole & Ors. ..Respondents Mr. P. S. Dani i/b. M/s. Divya Shah Associates for Petitioners. Mr. D. P. Shah for Respondents. CORAM : S. A. BOBDE, J. DATED : 7TH AUGUST, 2009. P.C. : 1. Rule, returnable forthwith. Taken up for final hearing by consent. 2. The petitioners – judgment debtors have challenged the Order dated 7th January 2009 passed by the Small Causes Court, Mumbai, below Exhibit ‘5’ in Appeal No. 166 of 2007 arising from T.E. & R. Suit No. 71/74 of 2002. 3. Mr. Dani, the learned counsel for the petitioners submits that though the learned appellate court rightly granted stay to the decree, the appellate court has committed an error in directing the appellants who are petitioners 2 before this court to deposit a sum of Rs.40,000/- per month from the date of decree till the date of the order within two months from the order and to further continue to deposit at the aforesaid rate. According to the learned counsel for the petitioners, the learned appellate court has lost sight of the fact that the petitioner No. 1 is admittedly shown as owner of 1/3rd undivided share of the property as is apparent from the pleadings. Further, the learned counsel for the petitioners points out that the trial court while passing the decree has held that so far as the mesne profits are concerned, a separate enquiry is necessary to be made under Order XX Rule 12 of the Code of Civil Procedure and admittedly such an enquiry has not been held. The learned counsel for the respondents is not in a position to dispute all these facts. 4. Having regard to the circumstances of the case and particularly the fact that the petitioner No. 1 is admittedly an owner of 1/3rd undivided share in the suit property and an enquiry under Order XX Rule 12 has not yet been held, the appellate court ought not to have granted a stay on condition that the petitioners deposits amounts by way of mesne profits during the pendency of the appeal. However, having regard to the circumstances of the case, it is appropriate in the interest of justice to direct the appellate court to decide the appeal as expeditiously as possible and in any case not later than twelve months from the next date i.e. 25th August, 2009. The enquiry under 3 Order XX Rule 12 shall continue. 5. Rule made absolute in terms of prayer clauses (a) and (b), which reads as follows : “(a) This Hon’ble Court be pleased to issue writ, certiorari and/or any other writ, order or direction in the nature of certiorari and thereby be pleased to quash and set aside the impugned part of the Judgment and Order dated 7th January, 2009 passed by the learned Appellate Court thereby imposing condition upon the present Petitioners for grant of stay to the execution of the Judgment and decree passed by the Learned Trial Court. (b) That the Application filed by the present petitioners being Application Exh. 5 in Appeal No. 166 of 2007 be allowed in its entirety and the stay be granted to the execution of the decree passed by the learned Trial Court in its entirety without there being any condition imposed on the Petitioner as condition for such stay.” 6. Order accordingly. (S. A. BOBDE, J.)