IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.517 OF 2008 APPEAL NO.517 OF 2008 APPEAL NO.517 OF 2008 Kiran Harkrishandas Ghaswalla ... Appellant Vs. The State of Maharashtra ... Respondents & Ors. Mr. V.V. Yadav i/by Mr. H.S. Venegaonkar for the Appellant. A.A. Mane, APP for Respondents. CORAM CORAM CORAM : R.S. MOHITE, J : R.S. MOHITE, J : R.S. MOHITE, J. DATE DATE DATE : 17TH JULY, 2008 : 17TH JULY, 2008 : 17TH JULY, 2008 P.C. P.C. P.C. :- :- :- 1. This is an appeal filed by the landlord of premises impugning the judgment and order directing the landlord and his new tenant (respondent Nos.4 and 5) to surrender the possession of Room No. 38 situate at 4th Floor, Ghaswala Compound, S.B. Marg, Tardeo, Mumbai to the competent authority. By the impugned order, Miscellaneous Application No.8 of 2008 is allowed and stands disposed of. 2. It is seen from the record that in the year 2002, C.R. No.96 of 2002 was registered 2 against the accused who are Respondent Nos. 2 and 3 in this appeal interalia for committing the offence under the M.P.I.D. Act. It is not in dispute that by an order dated 16/12/2004, the aforesaid Room No.38 in respect of which the respondent No. 2 was the tenant came to be attached and second lock was put by the authority on the said room. It appears that thereafter in the year 2005, the landlord filed a suit for eviction in the Court of Small Causes on the ground of non user and change of user. Since the accused was absconding, he had not appeared in the said proceeding and ultimately the suit filed by the landlord came to be decreed. . By way of execution of decree, the Bailiff went to the said premises. The Bailiff report indicates that he also found two locks on the said room. Both the locks were broken down and the premises were handed over to the landlord. After taking possession in this manner, fresh tenancy rights were created. 3. From the aforesaid facts, it is absolutely clear that prior to the filing of the suit in Small Causes Court, the property in question was 3 attached under an order of the Court passed in 2004. In this view of the matter, even assuming that there was a decree passed in favour of the landlord, possession could not have been handed over to the present appellant, without getting the order of the Court lifting the attachment. This has not been done and in such a situation, the Sessions Court has directed the surrender of the possession. 4. In my view, there is no legal infirmity in the order which is passed as the attachment in the year 2004 continues till today and has never been lifted. 5. The Appeal is dismissed with liberty to the appellant and respondent No. 4 to apply for vacating the attachment. If any such application is made, the same may be considered on its own merits without being influenced by the order of this Court. It is also made clear that this appeal also be decided without taking into account the observations made in the Paragraph 23 of the impugned order. Subject to these observations, the appeal stands dismissed. 4 6. Learned Advocate for the appellant states that there is an interim order of protection. Status-quo as of today will be maintained for a further period of eight weeks. ( R.S. MOHITE, J.) R.S. MOHITE, J.) R.S. MOHITE, J.)