1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.9210 OF 2011 WITH CIVIL APPLICATION NO.10154 OF 2011 IN FIRST APPEAL NO.198 OF 2007 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s Orders Mr.R.N.Dhorde h/f. Mr.R.A.Tambe, learned counsel for the applicants in CA No. 9210/2011. Mr.A.N.Nagargoje, learned counsel for respondents in CA No.9210/2011 and for applicants in CA No.10154/2011 and for respondent no.1 in CA No.10154/2011. CORAM : A.V.POTDAR, J. DATE : 12/12/2011 1. Civil Application no.9210/2011 is filed for the prayers, which reads as under : “Allow this civil application and vacate the stay to the possession granted by this Hon’ble High Court on 14/11/2008 and 03/02/2009 in civil application no.1445/2007 and direct the Executing Court to handover the possession of property, as the Collector, Ahmednagar has effected the partition in 2 Regular Darkhast No.19/2009 and for that purpose issue necessary order.” 2. Civil Application No.10154/2011 is filed by the original appellants for the prayer, “that, the time granted by this Hon’ble Court vide order dated 14/11/2008 for depositing the amount may kindly be extended and the applicants be permitted to deposit the amount in the Trial Court by granting 8 weeks time.” 3. As both these applications are the offshoot of the same order passed by this Court in CA No.1445/2007 on 14/11/2008, which was subsequently modified on 03/02/2009, but not complied by the appellants to the appeal, these applications to be disposed of by one common order. 4. Applicant no.1 Balkrushna has filed Special Civil Suit No.157/1998 before the learned Civil Judge, S.D. Sangamner, Dist. Ahmednagar against the total 61 persons including the appellants herein. Original plaintiff has claimed ½ share in the properties, subject matter of that suit. By judgment and decree dated 11/06/2007, learned Trial Court has declared that the applicants to application no.9210/2011, who 3 are original plaintiffs and defendants no.22 and 23 in the said suit, have ½ share in the subject matter of the suit, while original defendants no.1 to 7 who are appellants no.1 to 7 to the appeal F.A.No.198/2007 have also ½ share. 5. It appears that being aggrieved by the said judgment and decree dated 11/01/2007 passed by the Civil Judge, S.D. Sangamner, original defendants no.1 to 13 have preferred first appeal no.198/2007. In the said appeal, these applicants have filed stay application, seeking stay to the execution of judgment and decree bearing C.A.No.1445/2007. After hearing the parties, this Court has passed the conditional order on 14/11/2008, which reads as, “The judgment and decree passed by the learned Civil Judge, J.D. Sangamner, in Spl.Civil Suit No.157/1998 shall stands stayed in respect of immovable property only on the condition of appellant/applicant depositing Rs. 1,00,000/- (Rupees one lac) every year in the Trial Court. The amount for the year 2008 shall be deposited before 31/12/2008. So far as the amount for subsequent years is concerned, same shall be deposited before end 4 of 30th June of the relevant year. So far as decree passed by the Trial Court as contained in para nos. 5 and 7 shall stands stayed.” 6. It appears that this order passed in CA No.1445/2007 was modified by this Court on 03/02/2009. This clarification finds place in para no.3 of the order dated 03/02/2009, which reads as, “At page no.12 of the impugned order annexed herewith, at the end of first paragraph after the words “stay to the execution of decree passed by the Trial Court” it should be added as “only to the extent of possession and rest of the stages in respect of execution of decree shall continue.”. The modified order was challenged before the Supreme Court in S.L.P.(Civil) 8659/2009. By order dated 20/04/2009, the said S.L.P. Was dismissed. Even though the conditional stay order was passed on 14/11/2008, modified on 03/02/2009 and was rejected in SLP vide order dated 20/04/2009, no amount was deposited by the appellants in the First Appeal, as directed by this Court while granting the stay. 7. It is urged that already Spl.Dkt.No. 5 19/2009 is moved before the Civil Judge, S.D.Sangamner, in which it is claimed that as the condition imposed on the appellants in CA No.1445/2007 was not complied, execution about the partition to be implemented. Learned Executing Court, by its order dated 22/06/2011, rejected the application in view of the stay of this Court. In this connection, my attention is drawn towards Order 41 Rule 5 S/R 5 of the CPC which reads as follows : Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree. 8. Relying on the order 41 Rule 3 r/w. Rule 5, it is prayed that as the condition imposed on the appellants was not complied by them, stay to be vacated by allowing the application CA No.9210/2011. It is also urged that subsequent to the application filed before the Court of execution, an application CA No. 10154/2011 was filed by the appellants seeking extension to deposit the amount as 6 directed way back in November 2008, which is not a bonafide application, hence that application to be rejected. 9. Per contra, it is urged by the opponents in CA No.9210/2011 and on behalf of applicants in CA No.10154/2011 that due to financial crisis, the appellants have not deposited the amount as directed by this Court on 14/11/2008. Considering these submissions across the bar, one fact is clear that the stay granted vide order dated 14/11/2008 in CA No.1445/2007, which order was modified on 03/02/2009, and was rejected in SLP before the Supreme Court vide order dated 20/04/2009, the condition imposed on the appellants while granting stay to the execution of the judgment and decree impugned are not complied with. Perusal of the contents of CA No.10154/2011, which nowhere discloses about non complying of the directions of this Court while granting stay to the execution of the judgment and decree impugned, then order 41 rule 3 and rule 5 will come into play. Admittedly, this condition, as stated supra, is not complied with by the appellants. In the circumstances, 7 Civil Application No.9210/2011 is hereby allowed. The stay granted to the execution of judgment and decree dated 14/11/2008, which was modified on 03/02/2009 is hereby vacated. The application for extension in CA No.10154/2011 is not bonafide, hence rejected. Both civil applications stand disposed of accordingly. 10. Learned counsel Shri.Nagargoje for the applicants in CA No.9210/2011 has prayed for stay to the order today passed. As the conditional order is not complied since November 2008, prayer of stay to the order today passed is rejected. (A.V.POTDAR, J.) khs/Dec. 2011/ca9210-11