1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1549 OF 2009 Shankar mayappa Kamble since decased his heirs and legal representatives ...Petitioners vs. State of Maharashtra & others ...Respondents Mr.S.S.Patwardhan for the petitioners Mr.Mr.N.P.Deshpande A.G.P. for respondent no.1 Mr.S.A.Sawant for respondent no.2 CORAM :A.S.OKA,J. DATE : AUGUST 6, 2009 P.C. 1 Heard the learned counsel for the petitioner, learned A.G.P for the first respondent and the learned counsel for the second respondent. Considering the narrow controversy involved, the petition is taken up for final hearing. 2 The petitioner is the original plaintiff. A suit filed by the petitioner was decreed by the trial court. Apart from granting a decree of perpetual injunction, the trial court passed a decree of mandatory injunction directing the State of Maharashtra to get removed the construction, wire fencing, erection of boards etc. as mentioned in the commissioner s report and Commissioner s rough map within three months from the date of decree. The predecessor of the petitioner (original plaintiff) died on 1 st February 2008. The decree was sought to be executed by filing an execution application. Warrant was issued in execution application. The first respondent State of Maharashtra preferred an appeal on 23 rd October 2 2008 along with an application for condonation of delay. An application for stay was also moved by the first respondent. An exparte ad-interim order was passed by the learned District Judge-I on the said stay application by which the execution of the decree was stayed till 5 th November 2008 upon condition of the first respondent depositing a sum of Rs.25,00,000/- with the executing court on or before 5 th November 2008. 3 By the said order, a show cause notice was ordered to be issued to the respondents in the appeal calling upon them to show cause as to why ad-interim stay should not be confirmed. As pointed out earlier, when the appeal was filed along with delay condonation application, the original plaintiff was no more. However, the original plaintiff was shown as a party respondent no.1 to the application for condonation of delay. It appears that on 4 th November 2008 the learned Principal District Judge passed an order transferring the application for condonation of delay to his court. On 5 th November 2008, which was the returnable date, the respondent no.1-State applied for grant of time for one to one and half months to deposit the amount of Rs, 25,00,000/- on the ground that the amount ordered to be deposited was a large amount and therefore the administrative approval was likely to take some time. On the very day, an application was made by the first respondent for bringing on record the legal representatives of the original plaintiff. On 5 th November 2008 the said application was allowed. On the application made by the first respondent at Exh.7 for grant of time to deposit the amount, the learned Principal District Judge passed impugned order on the same day i.e on 5 th November 2008. The operative part of the said order reads thus : 3 An execution of a decree is stayed until further orders with no condition to deposit an amount of Rs. 25 lac. All the concerned matters are to be heard expeditiously. 4 A grievance has been made by the learned counsel for the petitioner about the manner in which the application for condonation of delay was transferred by the learned Principal District Judge to his own court by passing an administrative order. A contention has been raised in the petition that the order of transfer was passed by the learned Principal District Judge after the District Collector of Sangli met the learned Principal District Judge. My attention has been invited to the paragraph 2 of the impugned order. The learned counsel for the petitioner s pointed out that obviously the petitioners were not heard as they were not impleaded as parties till 6 th November 2008 and therefore there was no occasion for the Principal District Judge to modify the earlier ad- interim order and to continue the same till further orders. 5 After having considered the submissions of the learned counsel for the petitioner and after perusing annexures to this petition, I find that it will not be necessary to go into the wider controversy regarding the manner in which the application for condonation of delay was transferred by the learned Principal District Judge and the circumstances under which the order of transfer was passed. On plain reading of the earlier an ad- interim order passed by the learned District Judge-I on stay application, it is obvious that the said order was ad-interim order by which stay was granted subject to deposit a sum of Rs.25,00,000/- by the first respondent 4 State. Notice of the said application was made returnable on 1 st September 2008. 6 It cannot be disputed that at time of hearing of the said application for stay, the present petitioners could have opposed the said application by pointing out that no case for grant of stay was made out. Even the first respondent State could have argued that a case was made out for grant of unconditional stay without imposing any condition of the deposit of any amount. 7 It is obvious that ad-interim order passed on 24 th October 2008 was to remain in force till appropriate order was passed in accordance with law after hearing all concerned parties. It must be stated here that the order impugned has been passed by the learned Principal District Judge on an application made by the first respondent at Exh.7 in which the only prayer was for grant of time to deposit a sum of Rs.25,00,000/- in terms of ad-interim order. On the very day, i.e. On 5 th November 2008 on which impugned order was passed, an application for bringing on record the legal representatives of the original plaintiff was allowed. There was no application made before the learned Principal District Judge for modification of the earlier ad-interim order and on the contrary an application for extension of time to deposit the amount was before him. There was no application made by the State Government for modification of the earlier order. Therefore, on 5 th November 2008, there was no occasion for the learned Principal District Judge to consider the merits of the application for stay and to grant a blanket stay till further orders after deleting the condition of deposit of Rs.25,00,000/-. Therefore, at a stage when the legal representatives of the of the original plaintiff were not 5 even made parties to the appeal, there was no occasion to modify the earlier ad-interim order when there was no prayer made to that effect by the 1 st respondent- appellant. 8 Considering the entire controversy, interests of justice will be served if the application for stay at Exh.4 is ordered to be heard and decided in accordance with law. For the reasons set out earlier, the impugned order dated 5 th November 2008 will have to be quashed and set aside. It is obvious that the impugned order is quashed and set aside only on the ground that the same could not have been passed without hearing the petitioners. To facilitate the hearing of the application for stay, time granted by the appellate court to deposit the amount will have to be extended. The order of extension of time passed by this court shall not be construed to mean that this court has upheld the legality and validity of the ad-interim order dated 24 th October 2008. It is for the Appellate Court to decide at the hearing of stay application whether any such condition is required to be imposed. 9 Hence, I pass the following order : i) Impugned Judgment and Order dated 5 th November 2008 is quashed and set aside and the order dated 24 th October 2008 passed on application at Exh.4 is restored with modification that the time to deposit a sum of Rs.25,00,000/- is extended till 17 th September 2009. ii)It will be open for the petitioners to file a reply to the application at Exh.4 within a period of two weeks from today. iii)The application at Exh.4 shall be decided by the 6 District Court as expeditiously as possible and in any event on or before 15 th September 2009. It is made clear that that all the contentions of the parties in pending applications are expressly kept open. It is made clear that after hearing the parties, it will be open for the District Court to pass an appropriate order in accordance with law without being influenced by the orders dated 24 th October 2008 and 5 th November 2008 as well as this order passed by this court. iv)Writ Petition is partly allowed in above terms with no order as to costs. JUDGE