1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 3633 OF 2010 IN SECOND APPEAL NO. 179 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. V.V. Bhavthankar, Advocate holding for Mr. U.R.Chavan, Advocate for the applicant. Mr. P.P. More, Assistant Govt. Pleader for State. Mr. P.R. Katneshwarkar, Advocate for resp.no.1 to 6. ............................. CORAM : S.V. GANGAPURWALA, J. DATE : 15/10/2010 PER COURT : 1. This is an application seeking stay to the impugned Judgment and Decree. 2. The Suit of the plaintiff for possession came to be decreed by the lower appellate Court. The defendant has assailed the said Judgment in the present Second Appeal. The Second Appeal is admitted. 3. Admittedly, when the Suit was filed in the year 1989, possession was with the Govt. The 2 lower appellate Court has directed that the plaintiff be put in possession of the suit property. Pursuant to the decree passed by the lower appellate Court, the plaintiff was put in possession of the suit property on 9/3/2010. In a way, the decree stood executed. Thereafter this Court vide its order dated 20/4/2010 granted stay to the impugned Judgment and Decree. After the orders were passed by this Court, thereafter it is informed that the Govt. has again taken back the possession. 4. Mr. V.V. Bhavthankar, the learned counsel holding for the applicant submits that the Judgment and Decree deserves to be stayed as the appeal is admitted and the possession should remain with the Govt. and in case the possession is to be handed over, it should be handed over to the present applicants, who are the legal representatives of the real owner. According to him, the appellants have got strong case on merits. 5. Per contra, Mr. P.R. Katneshwarkar, the learned counsel for respondent nos. 1 to 6 submits that the lower appellate Court after assessing total evidence, has come to the conclusion that the present non applicant/original plaintiff is entitled for the possession of the said property. The said Decree was also executed. 6. In light of the same, it is the plaintiff, who is entitled for possession. 3 7. Mr. Bhavthankar in the alternative submits that in case possession is not being granted in favour of the present applicants, the property should remain in possession of the Govt. 8. With the assistance of the learned counsels, I have gone through the Judgment of the Courts below. Prima facie, the decree is in favour of the plaintiff. The decree was also executed and the plaintiff was put in possession of the property on 9/3/2010. Once the decree is executed, then in such circumstances, if the appellant succeeds in Appeal, the only course open is of restitution under Section 144 of the Code of Civil Procedure. The lower appellate Court has categorically come to the conclusion that the plaintiff is entitled for possession. If the impugned Judgment and decree is stayed, the possession would remain with the Govt. and it would be in nobody’s interest that the property be kept in possession of the Govt. As the decree is in favour of the plaintiff and the same was also executed, I pass following order. (i) The plaintiff would be entitled to take possession of the suit property from the Govt. The said possession will be in the capacity of receiver. The plaintiff shall maintain the accounts of the income and expenditure and submit the same every year to the Court. The plaintiff shall submit an undertaking to this Court before taking possession that in case the appellant succeeds in the Appeal, the plaintiff shall hand over the 4 possession to the appellant. The plaintiff shall not encumber the suit property nor shall create any third party interest in the suit property during the pendency of the present Appeal. (ii) The applicant shall submit the Paper book within the period of 8 weeks from today. Print dispensed with. Liberty to move for fixing the date of hearing after submission of the Paper Book. (iii) The present Civil Application is accordingly disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/CA 3633.10 in SA 179.10