1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3107 OF 2008 IN FIRST APPEAL NO.1190 OF 2008 Ramprasad Bhagwanprasad Anand and others : Applicants. Versus Smt.Asharani Yaggopal Singh Chaddha and others : Respondents. Shri Prem S. Gidwani for the Applicants. Shri D. D. Madan i/by Shri J. V. Parmar for Respondent Nos.1 to 5. CORAM : R.M.SAVANT, J DATED : September 10, 2008 P.C. 1. By the above Civil Application, the Applicants, who are the original Appellants and original Defendant Nos.1 to 4 in the suit filed by the Respondents here, have prayed for the following relief :- 2 “(a) pending the hearing and final disposal of the First Appeal the operation of impugned judgment and decree dated 19th March 2008 be stayed and the parties be directed to maintain status quo as granted by the Trial Court in the interlocutory stage by an order dated 23-07-2004 passed in Notice of Motion No.2886 of 2004” 2. The Applicants/Appellants have filed the above First Appeal impugning the Judgment and Decree dated 19th March 2008 passed by the learned Judge of the City Civil Court, Bombay by which the suit filed by the Respondent Nos.1 to 5 herein came to be decreed and and decree in the following terms has been passed :- “Defendant Nos.1 to 4 are restrained by order of permanent injunction from disturbing possession of the Plaintiffs in respect of Room No.213, 2nd Floor, Gold Mohur, 174, Princess Street, Mumbai 3 400 002 without due process of law.” “The prayer of the Plaintiffs for permanent injunction restraining the defendants from disposing off or creating any third party rights in respect of the above premises is rejected.” 3. The above Appeal filed by the Applicants/Appellants has been admitted by this Court on 10/6/2008. 4. It is contended on behalf of the Applicants/Appellants that though the decree has been passed restraining the Applicants/Appellants from disturbing the possession of the Plaintiffs in respect of Room No.213, 2nd Floor, Gold Mohur, 174, Princess Street, Mumbai 400 002, apparently there is no conclusive finding recorded by the trial Court as regards the possession of the Plaintiffs in respect of the said suit room. The learned advocate for the Applicants/Appellants, drew my attention to the order passed at the interlocutory stage in the Notice of Motion filed by the Respondent 4 Nos.1 to 5 i.e the Plaintiffs and submitted that the order passed at the interlocutory stage is, therefore, required to be continued pending the hearing and final disposal of the Appeal. 5. Per contra, it is submitted on behalf of the Respondent Nos.1 to 5 that the suit having been decreed and the Plaintiffs having been held to be in possession after a full fledged trial, the findings recorded at a interlocutory stage loose their efficacy. The learned counsel for the Respondent Nos.1 to 5 drew my attention to the finding recorded by the trial Court as regards the possession of the Plaintiffs while decreeing the said suit. 6. Having considered the rival contentions and having considered the findings recorded by the trial Court wherein it has been held that the Defendant No.5 was in possession of the Room in question upto the year 1991 and the Respondent Nos.1 to 5 i.e the Plaintiffs have laid their claim on the basis of the possession of the said Defendant No.5, in my view, the relief to the extent sought in the Civil Application cannot be granted. The submissions of the learned 5 advocate for the Applicants/Appellants as regards the findings recorded by the trial Court cannot be accepted at this stage and can be gone into only at the final hearing of the above Appeal. The decree passed by the trial Court, in my view therefore cannot be stayed. The Respondent Nos.1 to 5 i.e. the original Plaintiffs, would occupy the said suit Room premises subject to the outcome of the above Appeal. The Respondent Nos.1 to 5 would also be liable to pay the outgoings of the Co-operative society which payment would be without prejudice to the rights and contentions of the parties. The Respondent Nos.1 to 5 would not create any encumbrances or would also not create any third party rights in respect of the said suit Room premises. The Civil Application is accordingly disposed of. 7. At this stage Shri Gidwani, the learned advocate for the Applicants/Appellants prays for stay to the operation of this order for a period of eight weeks from date. Prayer is granted. 6 [R.M.SAVANT, J]