SRJ wp-7314-02.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7314 OF 2002 Shri D.Venkatesh Kumar .. Petitioner V/s. M/s. M. Sahani .. Respondent. Mr.V.J.Bolinjkar i/b. K.K.Malpathak, for Petitioner. CORAM : A.S.OKA, J. DATE : 29th MARCH,2010. JUDGMENT: 1] Heard Learned Counsel for the Petitioner. None appears for the Respondent. The challenge in this Writ Petition under article 227 of Constitution of India is to an order dated 25th October, 2002 passed by the Executing Court, by which an application was made by the Petitioner for stay of execution of the decree passed in favour of the Respondent was rejected. 2] The Respondent is the Original Plaintiff and the Petitioner is the Defendant. The decree for possession has been passed in the suit in favour of the Respondent. An application was taken out by the Petitioner under Rule 13, Order IX of the Code of Civil Procedure, 1908 (herein after referred to as the said Code). As there was a delay in preferring the said application, Misc. Application No. 259 of 2000 was filed by the Petitioner for condonation of SRJ wp-7314-02.sxw 2 delay. Initially, Trial Court stayed the execution of the decree pending the said application for condonation of delay. However, by order dated 21st February, 2000, the said application for condonation of delay was rejected on the ground that application for setting aside the decree was not maintainable under rule 13 of Order IX of the said Code. Being aggrieved by the said order, a Revision Application was preferred by the Petitioner in this Court. By judgment and order dated 3rd October, 2000, this Court allowed the Revision Application by setting aside the order of rejection of application for condonation of delay. This Court directed the Trial Court to decide the application for condonation of delay on merits. Thereafter, an application was made by the Petitioner in the pending execution application for stay of execution of decree for possession till the disposal of the application for condonation of delay. By the impugned order, the said application for stay has been rejected by the Executing Court. 3] The Learned Counsel appearing for the Petitioner on instructions of the Petitioner states that the application for condonation of delay is still pending and has not been finally decided. He submitted that during pendency of the said application, the execution of decree for possession ought to have been stayed. He submitted that the Executing Court has committed an error by not granting stay. SRJ wp-7314-02.sxw 3 4] I have carefully considered the submissions. It appears that application for setting aside ex-parte alongwith application for condonation of delay was filed in the year 2000. The Learned Counsel appearing of the Petitioner stated that application for condonation of delay is still pending. The application for condonation of delay is in the application for setting aside ex-parte decree. While setting aside the order of rejection of the said application, this Court has not passed an order of stay of the execution of the decree for possession. This is the ground on which the prayer made by the Petitioner has been rejected. The said ground is completely erroneous. In fact, during pendency of the revision application in this Court, there was an order of stay of execution of the decree. When application for condonation of delay in filing the application for setting aside ex- parte decree was pending, the prayer for stay of execution and operation of the decree for possession ought to have been granted. It must be stated here that on 29th November, 2002, this Court issued notice for final disposal at the admission stage. Ad-interim relief was granted in terms of prayer clause (b). The said order continues to operate till today. The said interim relief deserves to be continued till the application for condonation of delay is decided. SRJ wp-7314-02.sxw 4 5] Hence, I pass the following order:- (i) The impugned order below applications at Ex.35 and 37 is quashed and set aside to the extent to which the application at Ex.37 was dismissed; (ii) The ad-interim relief granted by this Court by order dated 29th November, 2002 will continue to operate till the final disposal of Misc. Application No.259 of 2000. (iii) Rule is made absolute in the above terms. (iv) All contentions of the parties on merits are kept open. (v) Hearing of the application for condonation of delay is expedited and the said application for condonation of delay shall be decided before the end of July, 2010. (A.S.OKA, J. ) SRJ wp-7314-02.sxw 5