kbp 1 7495-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7495 OF 2008 Smt.Godavari Surajmal Chavan and ors. ..Petitioners Vs. Harnarayan Narsinghdas Rathi and ors. ..Respondents ......... Mr.R.M.Haridas i/b.Mr.P.N.Joshi, for petitioners. Mr.S.S.Shah, for respondent nos.1A to 1F ......... CORAM : A.S.OKA, J.. DATE : 1 st OCTOBER, 2009. P.C. : 1] Heard learned counsel for the parties. 2] The first petitioner is the obstructionist and other petitioners are the judgment debtors. The respondents are the decree holders. The decree for possession was passed in favour of the respondents. An obstruction was raised by the first petitioner in the execution application by filing an application exhibit 170. Various contentions were raised in the said application including a contention that the decree was nullity. Adjudication was made on the basis of the said application under Rule 97 of the Order XXI of the Code of Civil Procedure, 1908. While making adjudication, issues were framed by the kbp 2 7495-08.sxw executing court. One of the issue was on the title claimed by the obstructionist (first petitioner) relating to the suit premises. By the judgment and order dated 1 st August, 2008, said application was rejected. The trial Court found that the obstructionist has failed to establish right, title and interest in respect of the suit property. An appeal was preferred against the said order by the petitioners. An application for stay of execution of decree was made in the appeal which has been rejected by the impugned order. 3] The learned counsel appearing for the petitioners submitted that the adjudication made by the executing court has a force of decree, and therefore, the appeal preferred by the petitioner was a substantive appeal against the decree. He submitted that after admitting the appeal, the appellate court could not have rejected the prayer for stay. He pointed out that as per the liberty granted by this court an affidavit has been filed by the petitioners pointing out that they are still in possession. He pointed out that the observation made in the impugned order about the possession is totally erroneous. He submitted that the very object of preferring the appeal will be frustrated if the prayer for stay is not granted. He submitted that by granting stay the appeal can be ordered to be heard in a time bound schedule. 4] I have carefully considered the submissions. It must be stated here that the adjudication was made by trial court on the basis of the obstruction/objection of the first petitioner. The other petitioners are judgment debtors. There is no kbp 3 7495-08.sxw challenge to the decree by the judgment debtors. The subject matter of challenge in the appeal was that the findings recorded by the trial Court in adjudication under Rule 97 read with Rule 103 of Order XXI of the Code. It will be necessary to consider paragraph 9 of the impugned order which records reasons for not granting stay. The relevant part thereof reads thus: “9. Even assuming that there is some title vested in obstructionist, admittedly she is not in possession of it and it is in possession of judgment-Debtors-tenants. There will be no harm likely to caused by refusing this petition because she has an equally efficacious remedy u/s.41 of the Specific Relief Act. Therefore, no purpose will be solved by staying the execution of decree of a age old suit which was filed by Decree Holders way back in the year 1980.......” (underline supplied) 5] What is recorded by the appellate court is that admittedly the first petitioner obstructionist is not in possession of the suit premises. The first petitioner may have filed an affidavit in this petition asserting the possession. What is recorded by the appellate court in the impugned order is an admitted position that the first petitioner obstructionist is not in possession and the judgment debtors are in possession of the suit property. The challenge in the appeal preferred by the first petitioner was limited to the findings recorded on the obstruction application filed by the first petitioner. The petitioner has not applied to the appellate court for clarification as regards the clear admission recorded in paragraph 9. Therefore, as of today, the admission recorded by the appellate court in paragraph 9 stands. It must be borne in mind that the appeal preferred kbp 4 7495-08.sxw by the 1 st petitioner was against the order passed in obstructionist proceedings. In a decree passed in the suit of year 1980, the appellate court has passed a discretionary order declining to grant interim relief of stay. It is not possible to interfere with the said order in this writ petition under Article 227 of the Constitution of India especially in the light of the admitted position recorded by the Appellate Court that the obstructionist is not in possession. It is obvious that by rejecting the prayer for interim relief the appeal will not become infructuous. If the appeal succeeds, the consequences in will follow in accordance with law. 6] Subject to what is observed above, the Writ Petition is rejected. 7] Learned counsel for the petitioners prays for continuation of interim relief granted by this Court. The said prayer is opposed by the learned counsel for the respondents. The ad-interim relief granted on 17 th November, 2008 will continue to operate for eight weeks. ( A.S.OKA, J. )