1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6826/2009 1] Pandurang S/o Vithoba Karad Age 43 years, Occ-Agril 2] Sow.Sunita Pandurang Karad, Age 38 years, Occ-Agril 3] Vithoba S/o Khandu Karad since deceased represented through L.R. Petitioner no.1 All R/o Dhorjalgaon-Ne Tq.Shevgaon, Dist.Ahmednagar. ..PETITIONERS [ORIG.DEFTS/APPELLANTS] VERSUS 1] Mangalbai Subhash Palve Age 42 years, Occ-Household R/o Dhorjalgaon-Ne, Tq.Shevgaon, Dist.Ahmednagar. ..RESPONDENT [ORIG.PLAINTIFF] .... Shri C.K.Shinde,Adv.for petitioners Shri S.V.Natu,Adv.for Respondent. .... CORAM : R.K.DESHPANDE,J. DATE : 1/7/2010. 2 ORAL JUDGMENT: 1] This petition challenges the order dated 28/7/2009 passed by the learned Districtd Judge-II, Ahmednagar, rejecting application for grant of stay to the judgment and decree passed by the trial Court. 2] Notice in this matter was issued on 12/10/2009 and the parties were directed to maintain status quo. In response to notice, Shri Natu, the learned counsel appeared for respondent -original plaintiff. The learned counsel for parties submit that this matter can be finally disposed of at the stage of admission. Rule. Rule returnable forthwith. Shri Natu, the learned counsel waives service of notice for respondent. 3] The impugned order passed on 28/7/2009 below Exh.5 in Miscellaneous Civil Application (delay) No.38/2009 is reproduced below : “Perused the record and proceeding. On a careful perusal of the record and proceeding I see no reason whatsoever to stay the execution of the judgment and decree in R.C.S.No. 3 223/2000 dated 13/10/2008. Application is hereby rejected.” 4] Shri Shinde, the learned counsel for the petitioner submits that the application has been rejected on the ground that it is not maintainable. In view of bar under Rule 3-A of Order 41 of Civil Procedure Code. According to him, such application for stay of the judgment and decree passed by the trial Court pending decision on application for condonation of delay is maintainable. He relies upon the judgment of the learned Single Judge of this Court reported in 1986 M.L.J. 902 in the case of Shaikh Ibrahim Janmohammad V/s Tekchand Fakirchand Rathod and others 5] Shri Natu, the learned counsel appearing for the respondent concedes to the position of law as pointed in the reported judgment cited supra. This Court has held after considering the provisions of Rule 3-A of Order 41 of C.P.C. that an application for stay to the judgment and decree passed by trial Court can be considered and granted pending the decision on the application for condonation of delay. In view of this, the point is no longer res-integra and the order passed by the learned District Judge is liable to be set aside. 6] Shri Natu, the learned counsel for respondent, however, submits that the application has been dismissed not only on the 4 ground that the same is not maintainable but on merits also, the Court was not satisfied that any case was made out for grant of stay. However, bare perusal of the order reproduced above, makes it clear that no reasons are recorded and Court has not gone into merits of the matter to find out whether the petitioner is entitled for grant of interim relief as asked for. Therefore, even assuming that such an ajudication is on merits of the matter i.e. on the application for stay, the same is not supported by reason. The order is therefore, liable to be quashed and set aside. 7] In the result, the instant Writ Petition is allowed. The order dated 28/7/2009 passed below Exh.5 in Miscellaneous Civil Application (Delay) No.38/2009 is hereby quashed and set aside. The Lower Appellate Court is directed to consider the application Exh.5 afresh on its own merits in the light of observations made by this Court as above. No order as to costs. 8] This Court passed order of status quo. The same shall continue pending the decision of the Application Exh.5 by the Appellate Court. [R. K. DESHPANDE, J.] umg/wp6826-09