1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Application No. 5566/06 IN Second Appeal No. 131 of 2001. ----------------------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. --------------------------------------------------------------------------------------------------- CORAM : A.P. Lavande,J DATE : 20th September, 2006 Heard Shri R. S. Sundaram, learned counsel for the appellant and Shri Rajeev Madkholkar, learned counsel for the respondent. 2. By this application, the appellant seeks stay of execution of the Judgment and decree dated 31.8.2006 passed by this Court in Second Appeal No. 131/2001. In the alternative, the appellant seeks stay of the execution proceedings in Execution Case No. SD 171/92 pending in the Court of Civil Judge, Sr. Dn., Nagpur for a period of eight weeks. 2 3. The respondent filed a suit for possession against the applicant which was decreed by the trial Court. The appeal preferred by the defendant/applicant was dismissed by the lower appellate Court and Second Appeal No. 131/01 preferred by the applicant has been dismissed on 31.8.2006. The applicant has filed the present application on 4.9.2006 purporting to be under Order 41, Rule 5 (2) of the Code of Civil Procedure. Mr. Sundaram, learned counsel appearing for the appellant submitted that the applicant is likely to be evicted by the Executing Court in view of the dismissal of the second appeal by this court on 31.8.2006 and the applicant desires to approach the apex court against the Judgment and decree passed by this Court and, therefore, it would be just and proper to grant relief sought for by the applicant in the interest of justice. 4. Per contra, Mr. Madkholkar, learned counsel appearing for the respondent relied upon Order 41, Rule 31 3 and 36 of the Code of Civil Procedure submitted that since the Judgment has been already pronounced by this Court, this Court has become functous officio and as such can not grant any relief to the applicant. In support of his submission, the learned counsel relied upon the Judgment of the apex court in State of Jharkhan and another vs. Govind Singh (AIR 2005 Supreme Court, 294). In reply to the submissions made by Mr. Madkholkar, Mr. Sundaram submitted that although the application filed is not maintainable under Order 41 Rule 5, the same is maintainable under section 151 of the Code of Civil Procedure and in the interest of justice this court can grant relief to the applicant. He invited my attention to Chapter XXIX-A of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as the Rules). Rule 1 of Chapter XXIX-A of the Rule clearly permits a party to file a written application for certificate for leave to appeal to the Supreme Court. According to Mr. Sundaram, if the party can file written application after the Judgment and decree is passed, there can be no bar for filing an application 4 seeking stay of the execution of the decree inasmuch as in case the decree is executed, same would cause irreparable loss and injury to the applicant and his right to file appeal under Article 133 of the Constitution of India after obtaining certificate from this court or special leave petition to the apex Court under article 136 of the Constitution and to seek interim relief therein would be defeated. 5. I have considered the submissions made by the learned counsel. No doubt the application filed is not maintainable under Order 41 Rule 5 of the Code of Civil Procedure. But ,in my opinion, such an application is maintainable under section 151 of the Code of Civil Procedure. In my opinion, Rules framed under Order 41 of the Code of Civil Procedure do not bar filing of such an application even after passing of the Judgment passed by this Court. In my opinion, in the interest of justice, this Court can grant appropriate relief in order to enable a party to approach the apex Court and get appropriate relief 5 from the apex Court against the Judgment and decree passed by this Court. In my opinion, the ratio laid down by the apex Court in the case of State of Jharkhand (supra) is clearly not attracted in the present case and Mr. Sundaram is justified in placing reliance on Rule 1 of Chapter XXIX-A of The Rules. 6. In view of the above, in the interest of justice, the execution proceedings in execution case No. SD 171/92 pending in the court of Civil Judge, Senior Division, Nagpur filed by the respondent are stayed for a period of eight weeks from 31.8.2006 in order to enable the applicant to approach the apex Court and seek appropriate relief. The application stands disposed of. Judge patle