AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL (STAMP) NO.6 OF 2010 Jaisingh Ankushrao Kubal (decd.) Subhada Jaisingh Kubal & Ors. ... Appellants Vs. The State of Maharashtra & Ors. ... Respondents Mr. G.K. Masand i/b Mr. S.A. Bhalekar for the appellants. Mr. H.J. Dedhia, APP for the State. Mr. A.V. Chatuphule for respondents 2 to 4. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 21ST APRIL, 2010. P.C.:- 1. Admit. The respondents waive service. By consent of the parties and at the request of the counsel, taken up for final hearing forthwith. 2. The appellants are landlords of Kubal Vilas, a building AJN 2 situated behind Plaza Cinema, Dadar, Mumbai – 400 028. Accused 2 in the above mentioned case was the appellants' tenant in respect of Flat No.8 situated on the 3rd floor of the said building (for convenience, “the said flat”). The said flat is locked and as directed by the Special Court, it is attached/secured in MPID Special Case No.5 of 2001 in GBCB CID Case No.5 of 2001 in GBCB CID CR No.1 of 2000. There is some dispute whether it is attached or merely secured. 3. The appellants filed a suit in Small Causes Court at Mumbai for eviction of accused 2 on the ground of non- user. The said suit was decreed and appeal was carried by accused 2 to the Division Bench of the Small Causes Court which came to be rejected. Civil Revision Application No.121 of 2007 was filed by accused 2 in this court which also came to be rejected. Accused 2 filed special leave petition against the said judgment and order which came to be dismissed by the Supreme Court on 30/11/2009. Undoubtedly, therefore, the decree passed AJN 3 by the Small Causes Court has assumed finality. The landlord's rights have been recognized upto the Supreme Court. In the circumstances, the appellants filed an application before the Special Court praying that attachment order dated 26/9/2003 in respect of the said flat be lifted and they may be permitted to execute the decree. 4. Admittedly, the Maharashtra Protection of Interest of Depositors (in Financial Establishment) Act, 1999 (for short, “the said Act”) has been struck down by this court as being unconstitutional. This court's judgment is challenged in the Supreme Court in Special Leave to Appeal (Cri.) No.(s) 406-409/2004. Our attention has been drawn to the interim order passed by the Supreme Court on 18/11/2005 in the said matter. The order reads thus: “Heard both sides. In view of the amount involved in the various transactions and the number of prosecutions launched under the provisions of Maharashtra AJN 4 Protection of Interest of Depositors (in Financial Establishments) Act, 1999, we grant interim stay in the following manner : In cases where investigations are in progress the prosecuting agency shall continue with the investigation. But there shall not be further prosecutions of the accused persons and as regards pending cases the status quo as on today shall be maintained. It is submitted that in 9 cases already accused persons have been convicted and the convicted persons would be at liberty to apply for bail and the court would be at liberty to pass order granting bail. The interim attachment granted by the competent authority shall subsist until further orders. However, in cases where applications for release of attachment have been filed, the same should be disposed of in accordance with law by separate orders. There shall not be sale of attached properties. The Authorities shall not take any coercive steps to recover the amount under the Act.” 5. In view of the above order of the Supreme Court, by impugned order dated 18/9/2009, learned Special Judge directed that the said application be kept in abeyance till the decision in special leave to appeal pending in the AJN 5 Supreme Court. Being aggrieved by the said order, the appellants have filed this appeal. 6. We have heard counsel for the appellants. He submitted that the appellants have got nothing to do with the pending case. They are the landlords of the said flat. There is a decree in their favour. It is against accused 2 who was their tenant. That decree must be executed. The said flat being tenanted premises cannot be sold in order to get money to pay the creditors. Learned counsel submitted that though inadvertently, it is prayed that attachment may be lifted, the said flat is not attached. Learned counsel drew our attention to order dated 23/10/2001 passed by the Special Court wherein it is observed that despite letter of the Investigating Officer to the Collector for attachment of 35 properties, three properties have not been attached. The said flat falls in the said three properties. Learned counsel then drew our attention to order dated 25/10/2001 wherein the Special Court has observed that the said flat stands in the name AJN 6 of accused 2 and her father; that it is locked and, therefore, the Investigating Officer shall further investigate and secure the said flat. Learned counsel pointed out that till date, the said flat is not attached as required under Section 4 of the said Act and inasmuch as it is not attached, order must be passed to de-seal the said flat, which is wrongly sealed. 7. It may be that the said flat was not attached. However, it is equally true that on the date on which the Supreme Court passed the above mentioned order, no application of the appellants for lifting the attachment or de-sealing the said flat or for handing over its possession to the appellants was pending. The said flat is secured and sealed pursuant to the order passed by the Special Court. As regards pending cases, the Supreme Court has ordered status quo. In the peculiar facts and circumstances of the case, therefore, we cannot fault the Special Court for directing that the said application be kept in abeyance till the decision in the pending special AJN 7 leave petition. We are not inclined to interfere with the said order. This order of ours, however, will not prevent the appellants from approaching the Supreme Court for appropriate orders, if they so desire. 8. Appeal is disposed of in the aforestated terms. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]