1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7032 OF 2009 Namdeo S/o Tawaji Shelke & Ors. ...petitioners vs. Dnyandeo S/O Namdeo Shelke & Ors. ...respondents Mr.Chetan Damle h/f Mr.Sagar Kasar for the petitioners Mr.P.N.Joshi for respondents nos.1 and 2 CORAM :A.S.OKA,J. DATE : JANUARY 28, 2010 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the 1st and 2nd respondents. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the order dated 29th April 2009 passed by the learned District Judge. The 1st and 2nd respondents are the plaintiffs who filed a suit for partition and separate possession of immoveable property. The petitioners are some of the defendants. The suit was decreed and an order was passed under section 54 of the Code of Civil Procedure,1908 as far as the suit lands subject to payment of land revenue were concerned. A preliminary decree of partition was passed in respect of the suit house property. The petitioners preferred an Appeal against the decree. An application for stay of the execution of the decree was made which has been rejected by the Appellate Court on the ground that a precept has been already sent by the Collector and proceedings are initiated and therefore, there is no point in staying the execution of the decree. The petition is opposed by the learned counsel for the 1st and 2nd respondents. He submitted that no case is made out for grant of stay. He submitted that if stay is to be granted, appropriate conditions including the condition of furnishing security be imposed. 2 2 I have considered the submissions. The decree subject matter of challenge in the Appeal is a preliminary decree in so far as house property is concerned. As far as agricultural lands are concerned,an order has been passed under section 54 of the said Code. As substantive Appeal is pending for final hearing, a limited order of interim relief ought to have been passed by the District Court. While passing the said order, the District Court could have restrained the petitioners from creating third party interests in respect of the suit property. Hence, impugned order will have to be set aside. 3 Hence, I pass the following order : i) Impugned order is quashed and set aside. ii)Till the disposal of the Appeal being Civil Appeal no.86 of 2006, partition proceedings will continue. However, actual physical partition by metes and bounds shall not be made till the disposal of the Appeal. iii)The aforesaid stay is granted subject to the condition that the petitioners will not create any third party interests in respect of the suit property and will not part with possession thereof till the disposal of the Appeal without permission of the District Court. iv)Hearing of the Appeal is expedited. The Appellate Court will endeavour to decide the Appeal expeditiously and preferably on or before 30th June 2010. v) Writ Petition is partly allowed in above terms. No order as to costs. 3 JUDGE