1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 5993 OF 2010 1] Jija S/o Baburao Darade Age 65 years, Occu. Agri. 2] Balu S/o Jija Darade, Age 30 years, Occu. Agri. 3] Sushilabai W/o Jija Darade, Age 55 years, Occu. Agri. All R/o Limba Rui, Tq. & Dist. Beed. .. PETITIONERS (Ori. Respondent Nos. 6 to 8) VERSUS 1] Sheaubai W/o Dinkar Sanap Age 45 years, Occu. Agri. R/o Sitpur, Tq. Karjat, Dist. Ahmednagar 2] Fakira S/o Baburao Darade, Age 70 years, Occu. Agri. R/o Limba Rui, Tq. & Dist. Beed. 3] Balasaheb S/o Fakira Darade, Age 40 years, Occu. Agri. R/o as above. 4] Haribhau S/o Fakira Darade, Age 37 yrs, Occu. Agri. R/o as above 5] Vishnu S/o Fakira Darade, Age 35 years, Occu. Agri. R/o as above. 2 6] Ankush S/o Fakira Darade, Age 30 yrs, Occu. Agri. R/o as above .. RESPONDENTS (Resp.No. 1 Org.Appellant, Resp. Nos. 2 to 6 Ori. Respondent Nos. 1 to 5) ... Shri Milind M. Patil (Beedkar), Advocate for petitioners Shri N.P. Bangar, Advocate for respondent No. 1 CORAM :- S.V. GANGAPURWALA, J. DATE :- 8th SEPTEMBER, 2010. ORAL JUDGMENT:- At the outset Shri Patil seeks leave to delete respondent Nos. 2 to 6 on the ground that they are formal parties and not required to be served leave to delete respondent Nos. 2 to 6 granted a the risk of the petitioners. Heard, Shri Patil, learned Counsel for the petitioners. Rule made Returnable forthwith, with the consent of parties. 2. The present respondent No. 1 had filed Misc. Civil Application No. 440 of 2009 for condoning the delay in preferring the appeal, against the Judgment and Decree dated 11th 3 September, 2009, passed by the Trial Judge, in Regular Civil Suit No. 322 of 2006. The present respondent No. 1 was not a party to the said suit, but claimed that he is affected by the said decree, as such, he has filed Misc. Civil Application 440 of 2009 for condonation of delay in preferring an appeal. Even separate application below Exh. 5 was filed in the said Misc. Application seeking stay to the Judgment and Decree, and the Court below had stayed the Judgment and Decree until further orders. 3. The Lower Appellate Court, while allowing the said Misc. civil Application No. 440 of 2009 has condoned the delay and directed that the appeal be registered. Appellate Court went one step ahead and also directed stay to the execution of the Judgment and Decree, till the disposal of the appeal on merits. This order is assailed by the present petitioners, who are the original decree holders. 4. The learned Counsel for the petitioners submitted that there was no application seeking 4 stay to the Judgment and Decree of the Trial Court pending hearing and final disposal of Appeal. The Appellate Court could not have suo- moto stayed the said Judgment and Decree. According to him, if there would have been application, the petitioners would have got an opportunity to contest the same and prayed to set aside the impugned order. 5. The learned Counsel for respondent No. 1 submitted that, in fact, an application for stay to the Judgment and Decree was moved vide Exh. 5 and arguments were heard on the same. Just because stay was not prayed in the application till the disposal of the appeal, that would not prevent the Court from passing the order. For that purpose, he relied on the Judgment of the Apex Court, in a case of “State of Madhya Pradesh V/s. Pradeep Kumar, reported in 2000 STPL(LE) 28553 SC”. 6. From the arguments advanced by the learned Counsels for the respective parties and on perusal of the application, it is clear that 5 present respondent had not made any prayer to stay the Decree till the disposal of the appeal. The prayer in Misc. Civil Application No. 440 of 2009 for stay of the decree passed by the Trial Court is restricted till the disposal of the application for condonation of delay. 7. Be that as it may, when there was no prayer to stay the Judgment and Decree till the disposal of the appeal, the petitioners could not get an opportunity to contest the same. 8. In the light of above, I quash and set aside the impugned order granting stay, as per prayer clause (4) of operative order, maintaining the rest of the order as it is. 9. The present respondent shall have liberty to make an application afresh for stay of the Judgment and Decree passed in Regular Civil Suit No. 322 of 2006 and the Appellate Court shall decide the same on its own merits, in accordance with law. 6 10. The Judgment and Decree in Regular Civil suit No. 322 of 2006 dated 11th September, 2007 is stayed for a period of four weeks from today, so as to enable the respondent No. 1 to move appropriate application before the Appellate Court. Accordingly, Rule made absolute in above terms. However, there shall be no order as to costs. [S.V. GANGAPURWALA,J] SDM*5993.10WP