AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.644 OF 2008. APPLICATION NO.644 OF 2008. APPLICATION NO.644 OF 2008. IN IN IN SECOND SECOND SECOND APPEAL NO.116 OF 2007. APPEAL NO.116 OF 2007. APPEAL NO.116 OF 2007. Father Andrew Rodrigues & Anr. ...Applicants Versus. Ms Roshan Nariman Alloona & Ors. ...Respondents Shri A.J.Almedia for the Applicants. Shri S.G.Karandikar for the Respondent No.3. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 25th MARCH, 2008. : 25th MARCH, 2008. : 25th MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard the learned advocate for the applicants. The applicants are the appellants in Second Appeal No.116 of 2007. The appellants are the original defendants Nos.1 and 2. The trial Court dismissed the suit filed by the plaintiffs and allowed the counter claim filed by the appellants-defendant Nos.1 and 2 granting perpetual injunction against the original plaintiffs. An appeal was preferred by the original plaintiffs to the District Court. The said appeal was allowed by setting aside the decree of the trial Court on the counter claim filed by the original defendant Nos.1 and 2 and the Appellate Court decreed the suit filed by the original plaintiffs and granted perpetual injunction against the defendant Nos.1 and 2. In Civil Application No.304 of 2007 filed by the appellants-applicants (the defendant Nos.1 and 2) this Court granted ad-interim relief in terms of prayer clause (b) on 21st March, 2008. Prayer clause (b) of the said Civil Application reads thus: : 2 : 2 : 2 : "(b) That pending the hearing and final disposal of the Appeal the execution and/or implementation of the judgment and decree dated 27.11.2006 passed by District Judge-1 at Palghar in Civil Appeal No.40 of 2003 be kindly stayed". Thus, what has been stayed by this Court is decree passed by the Appellate Court of perpetual injunction against the appellants in the Second Appeal. 2. In the present Civil Application the contention of the applicants is that as a result of ad-interim stay granted by this Court, the decree passed by the trial Court on counter claim filed by the applicants is revived and therefore, the original plaintiffs are bound by the decree of perpetual injunction passed in the counter claim. The allegation is that the respondents plaintiffs have committed breach of the decree of perpetual injunction passed by the trial Court and therefore, action needs to be taken against the respondents-plaintiffs under Rule 2A Order XXXIX of as well as Rule 11 of Order XXXIX of the Code of Civil Procedure, 1908. An action is sought under the Contempt of Courts Act, 1971. 3. The decree passed on the counter claim filed by : 3 : 3 : 3 : the applicants has been set aside by judgment and decree dated 27th November, 2006 passed by the District Court. The result of the decree passed by the District Court is that the counter claim filed by the appellants stands dismissed and the suit filed by the original plaintiffs stands decreed. Merely because the execution of decree of the Appellate Court is stayed, that will not amount to revival of the decree of perpetual injunction passed by the trial Court on the counter claim. A decree of the trial Court which is set aside by the first appellate Court cannot be revived by order of stay of the decree of the first appellate Court. 4. Therefore, the present application proceeds on erroneous assumption that injunction granted by the trial Court is operative on account of stay granted by this Court. It is obvious that the only effect of the ad-interim stay granted by this Court is that the decree of perpetual injunction passed against the appellants is stayed and there is no revival of the decree passed by the trial Court on the counter claim which has been set aside by the first Appellate Court. Hence, there is no merit in the application and the same is rejected. Rejection of this application will not preclude the applicants from taking out appropriate proceedings. Place the Civil Application No.304 of 2007 for hearing on 04th April, 2008. : 4 : 4 : 4 : Judge. Judge. Judge.