1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1160 OF 2011 (Shri Shrawan s/o Laxmanrao Tambhulkar vs. Shri Laxmanrao s/o Zadbaji Ghatode) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri H.D. Dangre, Advocate for the petitioner. Shri P.S. Sadavarte, Advocate for the respondent. -------- CORAM : R.M. SAVANT, J. DATED : JUNE 13, 2011 By the above petition, the petitioner takes exception to the order dated 15/2/2011 passed by the District Judge-6, Nagpur whereby the application for stay pending application for condonation of delay in filing application for restoration of the appeal filed by the petitioner came to be rejected. The petitioner is the original defendant in Regular Civil Suit No. 25/1997 which was filed by the respondent herein for eviction. The said suit came to be decreed on 29/11/2001. The petitioner 2 was directed to be evicted from the suit premises in question. Aggrieved by the said decree, the petitioner filed Regular Civil Appeal No.23/2002, which was dismissed for default on 20/12/2008. The petitioner claims that he has paid the rent upto-date. Shri Sadavarte, learned Counsel for the respondent, disputes the same and states that it is not paid in terms of the interim order passed by the First Appellate Court. In view of the dismissal of the Appeal for non-prosecution, the petitioner filed an application for restoration of the said Appeal. Since there was delay in filing the application for restoration, the petitioner filed an application for condonation of delay. In view of the fact that Appeal was dismissed for default, the interim stay operating in favour of the petitioner came to an end. The respondent has applied for execution of decree and presently execution proceedings are in motion. The petitioner, therefore, filed application (Exh. 5) for interim stay pending consideration of his application for condonation of delay in filing the restoration 3 application. The said application came to be rejected by the impugned order dated 15/2/2011. The gist of the reasons given by the appellate Court is that since the petitioner has filed application for condonation of delay in filing application for restoration of the appeal, the petitioner would not be entitled to invoke Order XLI Rule 3 of the Code of Civil Procedure. It is an admitted position that the application of the petitioner for seeking condonation of delay in filing restoration application is as yet pending. The fact situation relating to an Appeal, which has already been admitted and which has been dismissed for default and in which application for restoration has been filed, would stand apart from the fact situation where an application for stay has been filed at the threshold along with an application for condonation of delay in filing the Appeal. The reasoning of the appellate Court, therefore, in my view, cannot be faulted with. It is for the petitioner to get his application for condonation of delay in filing the restoration application decided. It would then be open for the petitioner to apply for interim stay of the decree passed, if otherwise permissible in 4 law. Till such time the application for condonation of delay is taken up for hearing, in my view, the petitioner would not be entitled to interim stay pending such consideration. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. However, in the facts and circumstances of the case, hearing of the application for condonation of delay in filing the restoration application is expedited and the First Appellate Court is directed to hear and dispose of the same within a period of two months from date. JUDGE khj