- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3166 OF 2008 ... M/s.Govind Hotels ...Petitioner v/s. Dahisar Jyoti Co.op.Hsg.Society ...Respondent ... Mr.G.S.Godbole with Mr.P.M.Arjunwadkar for the Petitioner. None for the Respondent. ... CORAM: D.K.DESHMUKH, J. DATED: 27TH JUNE, 2008 P.C.: 1. The facts that are material and relevant for deciding this petition are that the Petitioner filed a dispute before the Co.operative Court. That - 2 - dispute came to be decided by order dated 24-4-2003 by the Co.operative Court. The operative part of the order reads as under:- 1. The dispute is partly decreed. 2. The opponent society is hereby directed to issue bills to the disputants, as per provisions made in bye-laws, and after considering that the authorities of B.M.C. has ordered amalgamation of shop No.4 to 8 and 10 and 11, as a one unit. 3. The society is further directed to recalculate the maintenance charges in respect of disputed premises, from the order of amalgamation and issue fresh bills to the disputants. 4. Others prayers are rejected. 5. Injunction order dated 6-6-2002 is hereby vacated. 6. The opponent society to pay cost of the - 3 - dispute to the disputants and bear its own costs. 2. Against this order, an appeal was filed before the Co.operative Appellate Court, which failed. Review application was filed for review of the order of the Co.operative Appellate Court. That review application also failed. Ultimately, the Respondent/Society approached this court by filing Writ Petition No.8300 of 2006. That writ petition was disposed by the learned single Judge of this court by order dated 8-1-2007. The learned single Judge set aside the decree passed by the Co.operative Court and which was confirmed by the Appellate Court and remanded the dispute back to the Co.operative Court for fresh trial. 3. The Petitioner filed LPA No.26 of 2007 challenging the order passed by the learned single Judge. That LPA has been admitted for final hearing and by an order dated 6-3-2007 interim order in terms of prayer clause (a) of Civil Application No.40 of 2007 has been granted. Prayer clause (a) of that Civil Application reads as under:- - 4 - (a) Pending the hearing and final disposal of the Appeal the order dated 8th January, 2007 passed in Writ Petition No.8300 of 2006, as well as further proceedings in the Dispute No.211 of 2000 before IVth Co.operative Court, be stayed. 4. On the basis of the interim order passed in the LPA, it appears that the Petitioner moved the city civil court for executing the award of the Co.operative Court. In those proceedings by an order dated 31-1-2008, the city civil court declined to execute the decree in view of the pendency of the LPA. 5. I have heard the learned Counsel appearing for the Petitioner. I am not inclined to entertain the petition, because, in my opinion, it cannot be said that the order of the city civil court dated 31-1-2008 which is challenged in the present petition has resulted in failing of justice. It is clear that the learned single Judge of this Court has set aside the decree passed by the Co.operative Court and has directed retrial of the dispute. That order is - 5 - challenged in the LPA and the LPA Bench has stayed further trial pursuant to the remand order. If interim order passed by the LPA Bench taken to mean that the order passed by the Co.operative Court, which has been set aside by the learned single Judge is permitted to be executed while the appeal is pending, then the appeal itself may become infructuous. In my opinion, the view that has been taken by the city civil court that till the appeal is pending neither the trial on remand can go on nor the Petitioner can execute the decree passed by the Co.operative Court, which has been set aside by the learned single Judge of this Court, is correct and advances justice. 6. In this view of the matter, therefore, the petition is rejected. ...