909cas1136-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1136 OF 2011 WITH CIVIL APPLICATION NO. 1138 OF 2011 IN S.A. NO. 243 OF 2003 Shri Kashinath Hari Thakare & Anr. ... Applicants. V/s. Shri Ashok Jagannath Dumbre & Anr. ... Respondents. --- WITH CIVIL APPLICATION NO. 351 OF 2003 IN S.A. NO. 243 OF 2003 Shri Ashok Jagannath Dumbre & Anr. ... Applicants. V/s. Shri Kashinath Hari Thakare & Anr. ... Respondents. . --- Mr. S.M.Sabrad, Advocate for the Applicants in CA Nos.1136/2011, 1138/2011 and for Respondents in C.A. No.351/2003. Mr. R.D.Soni i/by Ram and Co. for the Respondents in CA. Nos.1136/2011, 1136/2011 and for the Applicants in CA No. 351/2003. --- CORAM:- G.S. GODBOLE, J. DATED :- 14TH OCTOBER, 2011. P.C. : 1 Mr. S.M.Sabrad, Advocate for the Applicants in CA Nos.1136/2011 and 1138/2011 and for Respondents in C.A. No.351/2003. Mr. R.D.Soni, 909cas1136-11.sxw 2 Advocate, instructed by Ram and Co. for Respondents in C.A. Nos. 1135/2011, 1138/2011 and for the Applicants in CA No. 351/2003. 2 Heard the learned counsel at length. The Second Appeal is filed by the original Plaintiff in Special Civil Suit No. 89 of 1994, which was a suit filed for specific performance. The learned C.J.,S.D., Niphad partly decreed the suit by Judgment and Order dated 31.12.1999 and that relief for specific performance was rejected and alternate relief in respect of earnest was granted. Aggrieved by this Decree, the original Plaintiffs filed Civil Appeal No. 12 of 2000 which has been dismissed on 31.12.2002 by the learned Additional District Judge, Niphad, Dist. Nashik. As a result, Second Appeal No. 243 of 2003 has been filed and the same is admitted. 3 The Appellants in the Second Appeal have filed C.A. No. 351/2003 for interim relief and by order dated 25.3.2003, ad-interim relief was granted in terms of prayer clauses (a) and (b) which is operating till today. 4 Original Defendants in Special Civil Suit No. 89/1994 who are Respondents in the Second Appeal and the Applicants in C.A. Nos. 1136/2011 and 1138/2011 have filed Special Civil Suit No.30/2002 for 909cas1136-11.sxw 3 recovery of possession. That suit is presently pending and is not being proceeded with on account of ad-interim order granted in C.A. No. 351/2003. Since the Decree for specific performance is declined and Decree for refund of earnest is passed which Decree is in favour of the present Appellants in the Second Appeal, the Appellants cannot seek stay to the execution of that Decree which is in their favour. If they do not want to file execution for refund of earnest they are free not to file such execution but as on today there is no executable Decree as against the Appellants. Vide prayer clause (b) of the Civil Application No. 351/2003, the Appellants have sought injunction against the Respondents not to disturb their possession. The Respondents have already acknowledged the fact that the Appellants are not in possession by filing Special Civil Suit No. 30/2002 for possession. It is therefore, obvious that unless and until the Respondents succeed in that suit, they cannot get possession of the suit land from the Appellant in the Second Appeal. In view of this the earlier ad-interim order passed in C.A. No. 351/2003 on 25.03.2003 deserves to be modified. Hence, I pass the following order : i C.A. No. 351/2003 is allowed only in terms of prayer clause (b) with a rider that possession of the Appellants/ 909cas1136-11.sxw 4 Applicants in C.A. No. 351/2003 will not be disturbed except by adopting due procedure prescribed by law which has already been adopted by the Respondents by filing Special Civil Suit No. 30/2002 for possession. Needless to say that if the Respondents in the Second Appeal are successful in getting the Decree for possession in the Suit filed by them and if the Appellants in the Second Appeal are unable to procure a stay of execution of such Decree from the Appellate Court, then and only then the injunction granted in terms of prayer clause (b) in favour of the Appellants in the Second Appeal will come to an end. ii It is further clarified that this order should not be construed as an expression of opinion on merits of the controversy involved in the Second Appeal or on the merits of the controversy involved in Special Civil Suit No. 30/2003 and the Trial Court or the Appellate Court in case an Appeal is required to be filed from that Decree, will not be influenced by this order in any manner either while hearing the suit or while hearing the Application for stay of the Decree in such suit if the same is filed. 909cas1136-11.sxw 5 iii With the aforesaid clarification, Rule in C.A. No. 351/2002 is made absolute in terms of prayer clause (b) only. iv Civil Application No. 1136/2011 is partly allowed. Hearing of the Appeal is expedited and the Appeal be added to the list of Second Appeals of senior citizens. The Applicants to file paper book and Decree forms within six weeks. Office to accept the paper books and Decree forms even if the same are being filed by the Respondents in the Second Appeal. v Civil Application No. 1138/2011 does not survive in view of the order passed above in the C.A. No. 351/2003. However, since the Special Civil Suit No. 30/2002 was not heard for last almost 9 years, the learned Judge of the Trial Court can now proceed to hear and decide the said Civil Suit on its own merits and in accordance with the law. [G. S. GODBOLE, J.]