AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.196 OF 2008 PETITION NO.196 OF 2008 PETITION NO.196 OF 2008 Dnyanoba Vishwanath More & Anr. ...Petitioners Versus. Sharad Shivling Kshirsagar & Anr. ...Respondents Shri Surel S. Shah for the Petitioners. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 02nd May, 2008. : 02nd May, 2008. : 02nd May, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard advocate for the petitioners. By order dated 14th January, 2008 notice for final disposal at admission stage was issued by this Court. Office noting shows that notice is duly served to the respondents. None appears for them. 2. The first respondent is the original plaintiff. The first petitioner is the original second defendant. The second respondent herein is the first defendant. In the suit filed by the first respondent, a decree for declaration as well as possession was passed by the trial Court. An appeal was preferred against the said decree by the petitioners. The second petitioner is the purchaser of the suit property from the first petitioner during the pendency of the suit. In the said appeal, an application for stay of execution and operation of the decree was made. The said application has been rejected : 2 : 2 : 2 : by the learned Adhoc District Judge, Pandharpur on the ground that the second petitioner has deliberately purchased the litigation and that in case the appeal is allowed, the second petitioner can get back the possession of the property. It is also observed that the second petitioner is not a bonafide purchaser of the property. It is this order dated 20th November, 2008 which has been impugned in the present petition filed under Article 227 of the Constitution of India. 3. After having considered the submissions made by the learned advocate for the petitioners, I find that this was a case where the decree for possession ought to have been stayed by the first appellate Court. The first appellate Court has observed that before preferring an appeal a leave was granted in favour of the second petitioner to prefer an appeal against the decree of the trial Court as the said petitioner was affected by the decree of the trial Court. Whether the second petitioner is a bonafide purchaser or not is a question to be decided at the time of hearing of the appeal. As a substantive appeal challenging the decree for possession was admitted, this was a case where application for stay ought to have been allowed to the extent of the decree for possession subject to compliance of certain conditions. The impugned order deserves to be quashed and set aside. : 3 : 3 : 3 : 4. Hence, I pass the following order: (i) The impugned order dated 20th November, 2007 is quashed and set aside. (ii) The application at Exhibit 5 in Civil Appeal No.142 of 2007 is partly allowed. Till the disposal of the said appeal, the decree for possession passed on 17th December, 2007 in Special Civil Suit No.259 of 2004 by the learned Civil Judge, Senior Division at Pandharpur will remain stayed subject to condition that the petitioners will not create any third party interests in respect of the suit property and will not part with possession of the suit property till the final disposal of the appeal. (iii) Writ Petition is partly allowed in above terms with no orders as to costs. (iv) Parties and concerned Court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE