IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.3473/2008 {Firm Ghasilal Laxminarayan Versus Civil Judge (Sr. Division) Gangapur City & Another} Date of Order :: 2nd July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Satish Khandelwal for the petitioner Mr. D.K. Dixit for the respondent no.2 BY THE COURT: Heard learned counsel for the parties. 2. The matter has come on board for orders on an application filed on behalf of respondent no.2 under Article 226 (3) of the Constitution of India for vacating the ex-parte interim stay order dated 8th April, 2008, but at the request of learned counsel for both the parties the final arguments were heard in the case. 3. Admit. 4. The plaintiff – respondent no.2 filed a suit for eviction against the defendant - petitioner which was decreed by the trial court. Being aggrieved with the same, an appeal was preferred by defendant which was also dismissed by the first appellate court on 5th March, 2008. The respondent – decree holder filed an application for execution of the -2- decree which was allowed and the executing court issued a warrant of possession vide order dated 5th April, 2008. The said order passed by the executing court is under challenge in this writ petition filed on behalf of the defendant. The grievance of the petitioner is that first appellate court dismissed the appeal on 5th March, 2008 and as per provisions of Rent Control Act, the decree of eviction could not have been executed for a period of 60 days, therefore, executing court committed an illegality in issuing the warrant of possession vide impugned order dated 5th April, 2008 which is liable to be set-aside. 5. The learned counsel for the respondent no.2 contended that now the period of 60 days has also come to an end from the date of judgment dated 5th March, 2008 passed by the first appellate court, therefore, present writ petition has become infructuous and the same may be dismissed as such. 6. The learned counsel for both the parties admit that defendant has already preferred second appeal in this Court which is fixed for admission on 9th July, 2008. Whatever objections or grounds are available to the petitioner will be allowed to be argued in the -3- second appeal within the scope of Section 100 of the Civil Procedure Code to the petitioner. So far as this present writ petition is concerned, the same has become infructuous as the period of 60 days has also come to an end from the date of order dated 5th March, 2008 passed by the first appellate court. This court had already protected the interest of the petitioner by granting ex-parte stay order dated 8th April, 2008 which now cannot be allowed to be continued. The petitioner may press his stay application in the second appeal which has been filed by him before this Court. 7. In view of above nothing survives to be decided in the writ petition and the same is, accordingly, dismissed with no order as to costs. 8. Since the writ petition itself has been dismissed, there is no need to pass any order on the application filed by the respondent no.2 under Article 226 (3) of the Constitution and the same also stands disposed of. (NARENDRA KUMAR JAIN),J. DK