1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.432 OF 2008 IN CIVIL APPLICATION NO.2340 OF 2000 IN SECOND APPEAL NO.614 OF 1989 Shankar Kadu Patil ..Applicant V/s. Babulal Gajmal Patil & ors ..Respondents Smt.Roshan A. Baig, Advocate, for the applicant None for the respondents CORAM : R.M.SAVANT, J. DATE : 25TH SEPTEMBER, 2008 P.C. . By the above Civil Application, the applicant prays for restoration of the Civil Application No.2340 of 2000 which has been dismissed for default on 22nd July, 2005, for condonation of delay in filing the above Civil Application and for vacating the order dated 1st December, 1989 passed by this Court in Civil Application No.5435 of 1989 staying the execution and operation of the impugned Judgment and Decree dated 25th April, 1986. The applicant is the original 2 respondent in the above mentioned Second Appeal. There is a decree for possession of the suit property in favour of the applicant. The said decree was challenged by the respondents in the Second Appeal in which an order came to be passed on 1st December, 1989, admitting the appeal and in the Civil Application No.4375 of 2008 which was filed for stay, interim relief in terms of prayer clause (b) was granted and the applicant i.e.the original respondent herein was directed to deposit Rs.10,000/- in the Trial Court towards maintenance charges of the society which were to be paid by the original respondent i.e.the applicant herein on or before 1st December, 1989, and continue to deposit Rs.200/- per month till final decision of this appeal. The applicant had filed Civil Application No.2340 of 2000 for the identical reliefs as claimed in the present application. However, as indicated above, the said application was dismissed for non-prosecution, the applicant has filed the instant application for restoration of the said Civil application. However, in the instant Civil Application No.5435 of 1989 the applicant by way prayer clause (c) has sought the same relief of vacation of the stay as sought in the said Civil Application No.2340 of 2000. Since the said Civil 3 Application No.2340 of 2000 was dismissed for default, the prayer made by the applicant in the instant Civil Application can be considered as the cause of action for filing the above Civil Application is a continuing one. 2. The case of the applicant is that the stay was granted on a condition that the applicant deposits Rs.10,000/- as also at the rate of Rs.200/- per month for occupation of the premises in question. It is the case of the applicant that the said condition has been violated. It is on the said ground that the vacation of stay is sought. Reading of the said order does not disclose that the deposit to be made was a condition for the grant of stay; as the consequences for non-deposit are not mentioned in the said order. It is not as if the respondent has not deposited any amount. May be there is a breach of the said order dated 1st December, 1989, however, in my view, stay cannot be vacated for the said reason. 3. It is the case of the applicant that except Rs.10,000/- and Rs.200/- which was directed to be paid per month, no amount has 4 been deposited by the respondents. If that be so, default has been committed by the respondents as long back as some time in the year 1990. The Second Appeal is of the year 1989. Therefore, instead of vacating stay at this stage in my view, it would be just and proper to fix the Second Appeal for final hearing in the week commencing 28th October, 2008. 4. If the respondent has not made the deposits as is contended on behalf of the applicant and if he is in arrears of payment, the respondent is directed to deposit the amount at the rate of Rs.200/- per month including the arrears by 28th October, 2008. In the event, the deposit is not made even as directed by this order, this Court would consider directing payment of the amount due with interest at such rate, as this Court deems appropriate at the final hearing of the Second Appeal. Civil Application is accordingly disposed of. (R.M.SAVANT, J.)