1 wp5364.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5364 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. S.S. Kazi, Advocate for the petitioners. 1. Heard Advocate Mr. Kazi for petitioner-defendant. Nobody appears for respondent-original plaintiff. The matter was earlier passed over and when called out, there is no appearance for respondent. 2. Advocate Mr. Kazi states that the suit filed by the respondent has been decreed after holding that the respondent-plaintiff is in possession. In Regular Civil Appeal, the petitioner-defendant sought stay of that judgment and decree and it has been refused. According to learned Counsel findings on facts recorded by the trial Court are perverse and the Court below has not looked into that contentions even prima facie. He argued that the discussion by trial Court itself has been accepted as true and correct. 2 wp5364.10 3. With the assistance of learned Counsel, I have perused the impugned order. Application moved by the petitioners-defendants does not disclose any legal provision but there is only prayer for grant of stay as also for temporary injunction. The contention on merits to show about the judgment and decree of trial Court is unsustainable, are not looked into by the appellate Court with observations that same can be gone into at final hearing stage. 4. Learned Counsel has attempted to demonstrate to this Court, since 1978 the petitioners-defendants are in possession and there is no material on record to indicate how the respondent-plaintiff got it. 5. Looking to the nature of controversy, I find interest of justice will be met with by restraining the respondent- plaintiff from executing the judgment and decree in his favour during pendency of appeal. However, the temporary injunction as sought for by the petitioners- defendants can not be granted at this stage. 6. The application moved by petitioner-defendant at Exhibit-5 in Regular Civil Appeal No. 24 of 2010 is thus partly allowed and the respondent-plaintiff is restrained from seeking execution of judgment and decree passed in her favour. 3 wp5364.10 7. Hearing in Regular Civil Appeal is expedited. The petitioners-defendants to file private paper book within a period of two months from today and the trial Court shall attempt to decide appeal itself on merits as possible as earlier and in any case within six months from the date on which the copy of this order is served on it. The Petition is thus partly allowed. No costs. (B.P. DHARMADHIKARI) JUDGE. 21.01.2011 gas/wp 5364.10