1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4643 OF 2009 Santosh Enterprises .. Petitioner Versus Alankar Exhibitors .. Respondent Mr.Hitesh P. Vyas for the petitioner. Mr.A.P.Vanarse for the respondent No.1. CORAM : A.S.OKA, J. DATE : 26 th August 2009. P.C.: . Heard learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. The respondent is the original plaintiff who instituted a suit for possession against the petitioner. The suit was decreed. An appeal was preferred by the petitioner in which he applied for stay. By order dated 13 th February 2007 the application for stay was allowed by passing following order: ORDER 1) Application Exh.6 is conditionally allowed as under. 2) The execution of decree of the trial 2 Court relating to delivery of possession of suit property shall stand stayed till decision of this appeal, upon the appellant depositing in this Court interim damages/mesne profits for use and occupation of the suit premises at the rate of Rs. 5,000/- (Rupees Five Thousand Only) per month from the date of institution of the suit, within 45 days from today. 3) Appellant shall go on depositing interim damages/mesne profits at the above rate in every month till decision of this appeal. 4) If the appellant fails to deposit the arrears of interim damages up till 09/03/2007 within a period of 45 days as aforesaid the order of stay shall stand vacated. 5) After the appellant deposits the arrears of interim damages in this Court as per the above order, the same shall not be paid to respondent and the said amount shall be kept by the Assistant Superintendent concerned in fixed deposit in State Bank of India initially for a period of nine months renewable by further period of three months each, till disposal of the appeal. 6) Order accordingly. 2. An application was made by the petitioner under Order XVA read with Order XXXIX, Rule 11 of the Code of Civil Procedure, 1908 for dismissal of the appeal on the ground that the petitioner has not deposited the amount at the rate of Rs. 5,000/- per month in terms of the order dated 13 th February 2007. By the impugned order, the said application made at Exhibit 29 by the respondent 3 has been allowed and the appeal has been dismissed for non compliance with order dated 13 th February 2007. 3. I have heard the submissions of the learned counsel appearing for the parties. The question is whether a substantive appeal could have been dismissed on the ground that the petitioner has not complied with the condition imposed by the Appellate Court while granting stay. Perusal of the order dated 13 th February 2007 shows that stay was granted subject to petitioner depositing a sum of Rs.5,000/- per month from the date of the institution of the suit and subject to the petitioner continuing to deposit the said amount every month till the decision of the appeal. The said order is a self-operative order which provides that if the entire arrears were not deposited within the time stipulated therein, the order of stay shall stand vacated. There was no application made by the respondent under Order XVA of the Code of Civil Procedure, 1908. The direction to pay the aforesaid amount is not issued in exercise of the powers under Order XVA 4 of the said Code. The order of deposit was passed on the application made by the petitioner for stay of execution of the decree for possession and the order of deposit was passed by way of condition for grant of stay. The order granting stay is a self-operative and the stay was to automatically stand vacated as a result of default committed by the petitioner. As the consequences of the default are provided in the order and as there was no direction issued under Order XVA of the said Code, the appeal could not have been dismissed on account of non compliance with order dated 13 th February 2007. The statutory appeal cannot be dismissed in such a fashion. Rule 11 of Order XXXIX of the said Code could not have been invoked in as much as the order dated 13 th February 2007 itself provides for the consequence of non compliance. It is not in dispute that the petitioner has not complied with the order dated 13 th February 2007. The logical consequence of the said default is that stay stands vacated in view of clause 4 of the order dated 13 th February 2007. However, the Appellate Court could not have dismissed the appeal. 5 4. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 21 st January 2009 is quashed and set aside and the appeal preferred by the petitioner is restored. (b) Subject to observations made earlier, the writ petition is allowed in above terms. (A.S.OKA,J)