1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.1433 OF 2009 IN WRIT PETITION NO. 4015 OF 2002 Hirji Ramji Thakkar ...Applicant vs. Moreshwar Vasudeo Kale ...Respondent Mr.Ajitkukar C.Shah for the applicant Mr.B.K.Raje for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 15, 2009 P.C. 1 Heard the learned counsel for the applicant and the learned counsel for the respondent. The applicant is the petitioner in the writ petition. The challenge by the applicant in the writ petition is to the decree for eviction passed against him. Rule was issued in the writ petition and stay was granted. On 10th October 2008, this court dismissed the petition on the ground that the sole petitioner had expired on 14th April 2007 and heirs did not make any application for bringing them on record. The present application for restoration has been filed on 5th May 2009. In the application it is stated that in execution of the decree which is impugned in the writ petition, the respondent has taken possession of the suit premises on 2nd April 2009. It is contended that the valuable articles of the original petitioner are still lying in the suit premises. It is pointed out that the applicant became aware of rejection of the writ petition when he was served with a copy of the application filed by the respondent praying for a direction for taking out belongings of the original petitioner from the suit premises. 2 2 The petition was dismissed as the heir of the petitioner did not apply for bringing his name on the record within the time provided by law. Therefore, the petition will have to be restored in the light of what is stated in the application. 3 There is a prayer for restoration of the possession. The said prayer is opposed by the learned counsel for the respondent by pointing out that the averments made in the application itself show that the applicant was not residing in the suit premises. He pointed out that even the averments made in paragraph 4 show that the applicant was not using the suit premises. The learned counsel for the applicant submitted that the execution is not yet complete in the sense that the articles of the petitioner are not yet removed from the suit premises. He submitted that this is a fit case where the possession has to be restored. In the alternative, it is submitted that further execution be stayed and the writ petition be placed for final disposal. 3 The application itself discloses that the decree was executed and the possession of the suit premises was handed over to the respondent. The only part which remains to be done is the removal of articles owned by the applicant. Though the petition deserves to be restored, this is not a case where the possession of the premises can be restored to the applicant. There is material on record to show that the applicant was not using the suit premises. The proceedings of application made by the respondent for a direction to take out articles of the applicant cannot be stayed. Though the possession cannot be restored at this stage, the respondent will have to be restrained from creating third party interests in respect of the suit premises and from 3 parting with possession of the suit premises. It is made clear that the possession of the respondent will be subject to final outcome of the writ petition. The respondent will file an undertaking in this court stating that he will not create any third party interests in respect of the suit premises and he will not part with possession of the suit premises in favour of any third party till the disposal of the writ petition. The said undertaking shall be filed on or before 16th November 2009. If such undertaking is not filed by the respondent within the stipulated time, it will be open for the applicant to take out an application praying for restoration of possession. 4 Hence, civil application is disposed of by passing the following order : i) Civil application is allowed in terms of prayer clause (a). ii)Prayer (b) is granted to the extent to which it is prayed that the applicant may be brought on record as legal representative of the petitioner. iii)The prayer for restoration of the possession is rejected. iv)Till the disposal of the writ petition, the respondent is restrained from creating any third party interests in respect of the suit premises and from parting with possession of the suit premises in favour of any third party. v) The respondent is directed to file an undertaking in this court stating therein that he will not create any third party interests and he will not part with possession of the suit premises in favour of any third party till the final disposal of the writ petition. Undertaking to be filed on or before 16th 4 November 2009. If such undertaking is not filed, it will be open for the applicant to take out a fresh applications for restoration of possession. vi) After amendment is carried out, the writ petition shall be placed on final hearing board. The registry is directed to place the writ petition for final hearing in the week commencing from 23rd November 2009. . At this stage, the learned counsel for the applicant seeks time to take away belongings from the suit premises. Time is granted till 30th November 2009 for that purpose. JUDGE