1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1346 OF 2010 Seetaram Balu Kadam and others Petitioners versus Sitaram Ramji Kadam and others Respondents M.L.Patil for petitioners. S.K.Shinde i/by Sagar Kasar for respondents. CORAM : A.S.OKA, J. DATE : 26th February 2010 PC : 1. Rule. Learned advocate on record for the respondents waives service. Considering the narrow controversy involved, taken-up for final hearing forthwith. 2. The petitioners are the defendants in a suit filed by the respondents. On 30th September 2009 the suit was decreed. The dispute between the parties relates to a deity by name "Shridev Chalkoba". The Trial Court passed a decree of prohibitory injunction as well as mandatory injunction. An appeal preferred by the petitioners for challenging the said decree has been admitted by the District Court. An application was made for stay of the execution of the decree as well as for grant of temporary injunction. Initially the Appellate Court passed an ad- 2 interim order directing that till the reply is filed to the application for stay, status-quo about "Devasthan Bastan" shall be maintained by the parties. By the impugned order dated 2nd February 2010 the application for stay has been rejected by the Appellate Court. The earlier ad-interim order dated 6th November 2009 has also been vacated. 3. Learned counsel for the petitioners submitted that a decree of drastic nature has been passed in a suit filed by the respondents and, therefore, pending a substantive appeal, the execution and the operation of the decree ought to have been stayed. He stated that as a matter of course the Appellate Court ought to have granted stay. Learned counsel for the respondents has placed on record a xerox copy of certified copy of order dated 18th March 2000 passed by the Trial Court in the suit filed by the respondents. The said order shows that ad-interim injunction was granted against the petitioners. Learned counsel for the respondents states that the said injunction was operating till disposal of the suit. He submitted that in view of operation of the order of temporary injunction till disposal of the suit, the prayer for stay could not have been granted. 4. Learned counsel for the petitioners, on instructions, states that the ad-interim order dated 18th March 2010 was not operating till disposal of the suit. He states that he has taken instructions from the advocate appearing for the petitioners in the Appellate Court. He has not received instructions from the concerned advocate also appeared in the Trial Court. 3 5. I have given careful consideration to the submissions. The appeal has been admitted for final hearing and there are various issues raised by the petitioners. Considering the nature of the operative part of the decree, the operation thereof ought to have been stayed by the appellate Court. The learned counsel for the respondents has made a statement that the ad-interim order of injunction dated 18th March 2000 passed by the Trial Court was operating till disposal of the suit. The statement is accepted. If the statement made by the learned counsel for the respondents on instructions is not correct, the petitioners can always apply for modification of this order. As the said order was operating, after the respondents have succeeded in the suit, even if stay is granted to the operation of the decree, the said interim order will have to be continued. 6. Hence, the petition is disposed of by passing following order :- A) The impugned judgement and order is quashed and set aside; B) Till disposal of the Civil Appeal No.83 of 2009, the execution and operation of the judgement and decree dated 30th September 2009 passed by the Trial Court will remain stayed; C) Till disposal of the appeal, the ad-interim order dated 18th March 2000 passed by the Trial Court below application at Exhibit-5 will continue to operate; 4 D) Hearing of the appeal is expedited; E) The parties are free to file private paper book; F) The Appellate Court shall endeavour to decide the appeal as expeditiously as possible and preferably before 31st July 2010; G) Liberty to the petitioners to apply for modification of this order, in the event it is found that ad-interim order dated 18th March 2000 was not operating till disposal of the suit; H) Rule is made absolute in above terms. (A.S.OKA, J.)