AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2311 OF 2008 IN FIRST APPEAL NO.1526 OF 2005 Shri Ravindra Ramchandra Sanas ... Applicant Vs. Smt. Radhabai Laxman Sanas & Ors. ... Respondents Mr. Prathamesh Bhargude for the applicant. Mr. S.N. Chandrachud for the respondents. CORAM : SMT. RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATED : 23RD APRIL, 2008. P.C.:- 1. The applicant had filed a suit in the Court of Civil Judge, Senior Division, Pune being Special Civil Suit No.1148 of 1996 for declaration and injunction and possession of the suit properties. In that suit, he had inter alia, based his claim on his alleged right of preemption. He had claimed that he has a preferential right to purchase the shares of the other co-sharers. That suit was dismissed on 31/3/2001. Being aggrieved by the said judgment and decree, First Appeal No.1526 of 2005 is filed and the same is admitted. 2. It appears that thereafter, the applicant filed Special Civil Suit No.401 of 2006 in the Court of Civil Judge, Senior Division, Pune for AJN 2 partition and possession. On 5/7/2006, preliminary decree is passed in the said suit. This decree is passed on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908. On 26/7/2006, final decree has been drawn. On 9/8/2007, execution proceedings have been initiated. By consent of parties, public notice was caused to be published for auction of the suit property. On 16/4/2008, two bids were offered. Learned counsel for the respondents states that the applicant participated in the bids through his proxy. Learned counsel for the applicant says that the applicant did not participate either himself or through his proxy in the bid. 3. On 22/4/2008, auction was fixed by the executing court. However, the auction could not take place because the present civil application was moved urgently by the applicant on 21/4/2008. This court granted circulation and directed the applicant to give notice to the respondents and their counsel Mr. Chandrachud. Pursuant to our order, the applicant has given notice to the respondents and their counsel. The auction proceedings were stayed by us because we were told that the appeal filed by the applicants challenging the dismissal of the suit, where right of preemption is claimed, is admitted by this court and if auction is permitted to take place and the suit property is sold, the appeal would be frustrated. AJN 3 4. However, we find from the facts which have been brought to our notice and about which there does not appear to be any dispute that the decree is passed on admission and all orders in execution have been passed by consent. Learned counsel for the applicant informs us that the application for stay of execution proceedings is pending in the trial court. If that is so, proper course for the applicant was to pursue that application and not to prefer an application in an appeal which arises out of a different suit. The execution proceedings are in Special Civil Suit No.401 of 2006. The said judgment and decree is not before us. It was, therefore, not proper for the applicant to file the present application. In the circumstances, the stay order passed by us will have to be vacated and is vacated as such. We, however, make it clear that the application for stay which is pending in the trial court can be prosecuted by the applicant and the executing court shall proceed with it in accordance with law. Civil application is disposed of. [SMT. RANJANA DESAI, J.] [SMT. R.P. SONDURBALDOTA, J.]