: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1039 OF 2008 WITH CIVIL APPLICATION NO.1265 OF 2008 Navchaitanya Sahakari Nagari Pat . Sanstha Ltd. through its Manager ....Appellant V/s. Smt.Sharada Vilas Pawar & Ors. ....Respondents Mr.Vijay Patil for the Appellant. Mr.Abhijit P. Kulkarni for Respondent Nos.1 to 4. CORAM : S.J. VAZIFDAR, J. DATED : 25TH NOVEMBER, 2008. P.C. : 1. Admit and heard finally. 2. The Appeal from Order is filed against the order of the learned Judge granting a stay of auction of a suit property. 3. That a recovery certificate under Section 101 was issued in favour of the Appellant is not in dispute. The Appellant’s contention is that a loan was granted in favour of Respondent No.5. To secure the due repayment of the said loan, a mortgage was created by Respondent No.5 in favour of the Appellant in respect of the suit property. This mortgage itself : 2 : has been disputed by Respondent Nos.1 to 4. Apart from that Respondent Nos.1 to 4 contend that the property belongs to Respondent Nos.1 to 5 jointly. 4. Respondent Nos.1 to 4 are the Plaintiffs. They are not concerned with the rights of Respondent No.5 although he may be a member of their family. There is no dispute that the property has been inherited by Respondent Nos.1 to 5 from their common ancestor one Pandurang and thereafter from their father one Vilas. The only question is whether there was a partition of the said property between Respondent Nos.1 to 5 inter-se. It is difficult at this stage to come to any final decision in this regard. Thus no fault can be found with the impugned order in so far as the auction has been stayed. However, in my opinion, the property requires to be protected pending the hearing and final disposal of the suit. I intend modifying the order in this regard. 5. Further there is nothing on record which indicates any rights of Respondent Nos.1 to 4 in Gat No.272/5. The said property was acquired by Respondent No.5 alone by an agreement entered into on 15.12.2003. There is no evidence to suggest that this property is owned by Respondent Nos.1 to 5. The : 3 : auction therefore of this property ought not to have been stayed. 6. Further nothing prevents the auction of the rights of Respondent No.5 even in respect of the remaining properties. Respondent No.5 admittedly has atleast a 1/5th share therein. 7. In the circumstances,the impugned order is substituted with the following :- i). The auction in respect of gat Nos.50/5, 55/3 and 371/5 is stayed except to the extent of the fifth Respondent’s 1/5th undivided share therein. ii). The impugned order in so far as it relates to gat No.272/5 is set-aside. iii). Pending the hearing the final disposal of the suit, the Respondents are restrained from disposing of, alienating, encumbering, parting with possession of or creating any third party right, title and/or interest in, to, upon or in respect of gat Nos.50/5, 55/3 and 371/5. : 4 : 8. The Appeal from Order and the Civil Application are accordingly disposed of.