1 6-cas-1608-2009.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj CIVIL APPLICATION NO.1608 OF 2009 IN SECOND APPEAL NO.1236 OF 2004 Shantaram D. Tupsakhare (since deceased) through his Legal Heirs & Others .. Applicants V/s. Shri Anant D. Tupsakhare & Others .. Respondents. Mr. Amit Borkar, for Applicants. Mr. K. Y. Mandlik, for Respondent No.1. CORAM : G.S.GODBOLE, J. DATE : 29th AUGUST, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 This Civil Application is filed by original Respondent in the Second Appeal for fixing early date of hearing or for modification of the interim order dated 2nd November, 2004. By the said order, stay of the preliminary decree of partition and separate possession passed by the Trial 2 6-cas-1608-2009.sxw Court and confirmed by the Appellate Court, has been granted. 3 Since Second Appeal from the year 1989 are pending, it is not possible to give any priority to this Second Appeal. Hence, prayer for fixing early date is rejected. 4 However, considering the nature of the preliminary decree passed on 31st December, 1996 and the time normally taken in partition proceedings, case is made out for modification of the interim order dated 2nd November, 2004 in such a manner that it will not cause any prejudice to the Respondent No.1 who is original Appellant in the Second Appeal, viz. the partition proceedings can go on but actual delivery of possession should not be effected. 5 Hence, I passed the following order:- (a) Prayer clause (a) for fixing early date is rejected. (b) The earlier interim order dated 2nd November, 2004 is modified. The partition proceedings will go on pursuant to the preliminary decree, but physical possession will not be handed over. 3 6-cas-1608-2009.sxw (c) There will, however, be limited stay of clause (5) of the operative decree passed by the learned C.J.S.D. Nashik on 31st December, 1996 in Civil Suit No.367 of 1992. It is clarified that the enquiry in the mesne profits can also proceed but, if any decree is passed for payment of mesne profits, same will not be executed till the hearing of the Second Appeal. (d) Civil Application is disposed off in the aforesaid terms with no orders as to costs. (G.S.GODBOLE, J.)