1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5105/2008 Manoj Tukaram Dalvi vs. Fazaluddin & Co. and another. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- CORAM : S.R.DONGAONKAR, J. DATE : 26 th MARCH , 2009 Heard Shri Rohit Deo, Advocate, for the petitioner. None present for Respondent Nos. 1 & 2 though served with the notice of final disposal. Learned counsel for the petitioner submits that petitioner has filed S.D.No.56/2008 for possession after a decree of eviction of Respondent No.1. According to him, respondent no.2 in W.S. has not raised any case to defend the suit, on the contrary she had contended that she was no way concerned with the suit property. The appeal was preferred by her bearing Civil Appeal No. 248/2004. In that appeal, application for stay was rejected as per the order dated 29.03.2007, which read thus- ORDER BELOW EXH.5 (Application for stay) Appellant and respondents are absent. Application is pending since inception of the 2 matter. It can be gathered that the appellant might have lost his interest in the matter. Hence, application is rejected for want of prosecution. Thereafter, the said appeal was dismissed on 14.12.2007 with the following order. ORDER PASSED BELOW EXH.1 Appellant called out, absent. Since long appellant not appearing. Paper book charges not paid. This shows that she is not interested. Hence, dismissed. No order as to costs. Thereafter, the instant matter was filed. In that, the present respondent no. 2 raised the objection under Section 47 of the C.P.C. Therein the following order was passed. ORDER BELOW EXH.18 Perused application and say filed on it. Heard both sides. J.D.No. 3 submitted that decree is not executable and she has filed appeal which was dismissed, but she has filed M.C.A. which is pending. D.H. filed reply. It is to be noted that the objections raised by J.D. were already decided by ld. predecessor in judgment. So the object of J.D.No. 3 is not maintainable. There is no grounds to stay the proceedings. Hence, objection of J.D. No. 3 3 is dismissed. It appears that the executing court had directed that the matter shall not proceed till the decision of the appellate Court. Thus, C.A. NO. 800/2008 filed by respondent no.2 for restoration of the appeal which was dismissed for default, was pending. The decree holder had applied for issue of warrant of possession and attachment. On that impugned order dated 24.11.2008 is passed, which reads thus. ORDER BELOW EXH.20 Perused application and say filed on it and pursis at Exh.19. It appears that M.C.A. 800/08 is pending in the Distt. Court. Hence, it would not be proper to issue warrant. Hence, application is rejected. The facts which are apparent are that M.C.A. for restoration of the appeal which was dismissed for default of respondent no. 2 is pending. It is submitted by the learned counsel for the petitioner that there is no stay operating for execution of the impugned decree. It is also contended by the learned counsel for the petitioner that the appellant in that appeal i.e. applicant in M.C.A. and the present J.D.No.3 had made a statement in the suit that she is not concerned 4 with the property. In these circumstances, unless there is expressed stay, ordering the stay of the execution of the judgment and decree in the appeal, stay to the execution would not be warranted. In this view of the matter, the impugned order does not seem to be correct. There is no contest from the respondents, despite service of the notice for final disposal. As such, no order except to quash and set aside the impugned order can be passed. The petition is, therefore, allowed. The impugned order is here by quashed and set aside. The execution filed by the petitioner to proceed in accordance with the law. Petition disposed of. JUDGE Rvjalit