**1** S.B. Civil Writ Petition No.16144 of 2009 Mehar Chand son of Shri Kewal Ram Khatri and Others VERSUS Babu Khan son of Shri Bhure Khan IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Writ Petition No.16144 of 2009 Mehar Chand son of Shri Kewal Ram Khatri and Others ..... Petitioner VERSUS Babu Khan son of Shri Bhure Khan ..... Respondent Date of Judgment :::: 12th January, 2010. Hon'ble Mr. Justice Dalip Singh Mr. Suresh Sahni, Counsel for the Petitioners Mr. Arvind Kumar Bhardwaj, Counsel for Respondent *** By the Court : Heard learned counsel for the parties. Learned counsel submitted that instead of admitting the matter and passing the proposed interim order the matter may be disposed of in the light of the proposed interim order. Hence, this matter is being finally decided. Admittedly, the petition arises as a consequence of the order passed in S.B. Civil Second Appeal bearing No.534 of 2001 in which the interim order was passed on 23.02.2007 staying the execution of the decree for eviction and arrears of rent. **2** S.B. Civil Writ Petition No.16144 of 2009 Mehar Chand son of Shri Kewal Ram Khatri and Others VERSUS Babu Khan son of Shri Bhure Khan The aforesaid order is available on record as Annexure-1. The order was a conditional one. Admittedly, the appellant, who is respondent-non- petitioner, herein (tenant) has not complied with the conditions imposed in the interim order dated 23.02.2007 in second appeal as such the order being conditional the interim order can not operate in favour of the defendant-respondent-tenant. The second appeal came to be dismissed in default for non-prosecution vide order dated 04.04.2008 and the decree-holder plaintiff as a result of the same proceeded to execute the decree and in execution of the decree obtained possession of the premises. The second appeal was restored by the Court. However, the conditions, which were imposed in the order dated 23.02.2007, while passing the interim order were still not complied with. The submission of the learned counsel for the tenant-respondent is that as a result of the restoration of the appeal the tenant is entitled to restitution, as the stay order stands revived, this prima-facie cannot be accepted as the interim order being a conditional one stood vacated on non- compliance of the aforesaid conditions of submitting the undertaking regarding handing over vacant possession in the event of the dismissal of the appeal and further to pay the rent regularly as also deposit of the entire arrears of rent. **3** S.B. Civil Writ Petition No.16144 of 2009 Mehar Chand son of Shri Kewal Ram Khatri and Others VERSUS Babu Khan son of Shri Bhure Khan The learned Court below has ordered restitution, despite non-compliance of the condition in the stay order by the defendant and directed the plaintiff to obtain orders from this Court in second appeal. The appellate Court too dismissed the appeal and upheld the said order of the trial Court. Hence, this writ petition. It is not in dispute that the stay order staying execution was a conditional one and irrespective of the fact whether the second appeal was dismissed for default or not (having since been restored) the plaintiff decree-holder was at liberty to execute the decree, since the conditions were not complied with the order was in operatives as it was to be complied in a time bound manner. In that view of the matter the decree has rightly been executed and no case for restitution arises as even if the stay order stands restored the direction remain the same with the conditions imposed in it. Thus the order of stay being conditional and the conditions not having been complied or fulfilled within time the right of the decree-holder to get the decree executed stands and the order for restitution deserves to be set aside as even alternatively the revival of the stay order is with the conditions, which have not been complied with in time. As such the decree-holder was well within his rights to execute the decree, which has been validly executed. As such no case for restitution under Section 144, C.P.C. arises. **4** S.B. Civil Writ Petition No.16144 of 2009 Mehar Chand son of Shri Kewal Ram Khatri and Others VERSUS Babu Khan son of Shri Bhure Khan The impugned orders are, therefore, liable to be set aside. The learned counsel for the respondent-tenant sought leave to approach this Court in the second appeal to seek necessary relief. He may do so in accordance with law. The non-petitioner is at liberty to approach this Court in the second appeal, in case, he is so advised. The writ petition stands allowed with the liberty to the respondent as aforesaid. The orders passed by the learned Courts below are set aside. (Dalip Singh), J. Ashok/