Bombay High Court
Abdul Aziz Sk Abdul Bari And Others vs Syed Aleemuddin Saber Pasha Syed ... on 10 July, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8317 OF 2017
1. Abdul Aziz s/o Sk. Abdul Bari PETITIONERS
Age - 63 years, Occ - Business,
R/o Masjeed Gayaskhan Nabina,
Kotwalpura, Aurangabad
Taluka and District - Aurangabad
2. Abdul Kayum s/o Sk. Abdul Bari
Age - 59 years, Occ - Business,
R/o Masjeed Gayaskhan Nabina
Kotwalpura, Aurangabad
3. Abdul Rauf s/o Sk. Abdul Bari,
Age - 57 years, Occ - Business,
R/o Masjeed Gayaskhan Nabina
Kotwalpura, Aurangabad
VERSUS
1. Syed Aleemuddin @ Saber Pasha RESPONDENTS
S/o Syed Ahsanuddin
Age - 63 years, Occ - Business
R/o Karim Colony, Aurangabad
Taluka and District - Aurangabad
2. Hamidunisa Begum w/o Syed Ahsanuddin
Age - 58 years, Occ - Household
R/o As above
3. Syeda Anis Ahmadi Begum w/o Mohammad Rafeekuddin
Age - 56 years, Occ - Service
R/o Rengtipura, Aurangabad
Taluka and District - Aurangabad
4. Syeda Asmat Parveen Begum
D/o Syed Ahsanuddin
Age - 37 years, Occ - Household
R/o Rengtipura, Aurangabad
Taluka and District - Aurangabad
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5. Khurshida Begum w/o Nawab Syed Sultanoddin
(Died) (Her L Rs are already on record
i.e. present petitioners)
6. Mahmooda Begum w/o Nawab Syed Sultanoddin
Age - 65 years, Occ - Household
R/o C/o Mustafa Pasha
H. No. 22-1-601, Noorkhan Bazar,
Hyderabad (AP)
7. Syed Akbaruddin s/o Syed Sultanoddin,
Age - 40 years, Occ - Hakimi
R/o Mill Corner, Aurangabad
8. Syeda Huoorunisa w/o Bin Mohammad
Age - 36 years, Occ - Household
R/o C/o Mustafa Pasha
H. No. 22-1-601, Noorkhan Bazar
Hyedrabad (AP)
9. Syed Azimoddin s/o Syed Sultanoddin
Age - 33 years, Occ - Nil
R/o C/o Mustafa Pasha
H. No. 22-1-601, Noorkhan Bazar
Hyedrabad (AP)
10. Syed Shahnoor Begum w/o Sarda Baig,
Age - 33 years, Occ - Private Service
R/o C/o Mustafa Pasha
H. No. 22-1-601, Noorkhan Bazar
Hyedrabad (AP)
11. Asmatunisa Begum w/o Syed Sultanoddin,
Age - 55 years, Occ - Household
R/o H. No. 7-5, Natharam
Hyderabad (AP)
12. Syeda Rahimunisa Begum w/o Mohamamd Shufiuddin
Age - 35 years, Occ - Household
R/o Road No. 9, Kishanbaig,
Hyderabad (AP)
13. Syed Badrunisa Begum w/o Syed Salhauddin
Age - 30 years Occ - Private Service
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R/o H. No. 7-5, Natharam,
Hyderabad (AP)
14. Sk. Naseer S/o Sk. Ibrahim,
Age - 28 years, Occ - Business
R/o Kohinoor Colony, Kotwalpura
Aurangabad
15. Smt. Khaja Parvin w/o Shaikh Hussain,
Age - 23 years, Occ - Household
R/o Kohinoor Colony, Kotwalpura
Aurangabad
16. M. Saleemuddin s/o Jan Mohammad
Age - 35 years, Occ - Business
R/o Kohinoor Colony, Kotwalpura
Aurangabad (MS)
17. Bombay Mercantile Co-operative Bank Ltd.,
Juna Bazar, Aurangabad
Through Manager
.......
Mr.Mahesh B. Ubale, Advocate for the petitioners
Ms.Shaikh Afreen Fatima, Advocate for respondent No.1
Mr.Sudhir Bhalerao h/f Mr.V.P.Latange, for respondents No.8 & 10
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 10th JULY, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the appearing parties finally by consent.
2. It appears that decree passed way back in 2000 in Special
Civil Suit No. 249 of 1990 is under challenge in Regular Civil
Appeal No. 272 of 2012, pending before District Court,
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Aurangabad. Special Civil Suit No. 249 of 1990 had been
instituted by plaintiffs No. 1 to 4 against 16 defendants,
including bank.
3. Petitioners before this court are defendants No. 13 to 15
in said suit. The suit had been decreed under judgment and
order dated 17th January, 2000. It is that decree, which has been
challenged by present petitioners - defendants No. 13 to 15
initially before this court, which subsequently came to be
transfered to District Court now bearing aforesaid Regular Civil
Appeal No. 272 of 2012.
4. During pendency of appeal, it appears, Darkhast
proceedings had been moved around November, 2013 and
thereafter an application at the behest of present petitioners had
been moved bearing Exhibit-16 in Regular Civil Appeal No. 272
of 2012 on 4th December, 2013. An order came to be passed on
said application "Other side to say and parties to maintain status quo".
Subsequently, on 10th July, 2015, while petitioners' advocate had
been absent, after hearing learned defence advocate, it had
been directed to decide application along with main appeal.
Thereafter, intriguingly, an application Exhibit-28 came to be
moved on 24th October, 2016 on behalf of respondent No. 1 in
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Regular Civil Appeal No. 272 of 2012 for vacating interim order
contending that matter is getting prolonged and that although
there is no stay, the executing court is considering there is
interim order.
5. While deciding application Exhibit-28 appellate court has
observed that there have been quite a few obstacles which are
required to be removed by the petitioners and despite sufficient
opportunities to the petitioners, they have not taken any steps
for service of summons on the respondents in the appeal and
going by the general tendency that loser protracts trial which has
been happening in the matter and also having regard to circular
issued by the High Court to dispose of old matters on priority
basis, status quo order passed on Exhibit-16 had been declared
to be not in operation. It is against this order petitioners are
before this court.
6. Learned advocate for the petitioners submits that he would
do all requisite as may be required for preparing appeal for
hearing and all the requisites would be complied within within a
period of two months from today, including decision on
applications if any.
7. Learned advocates for the respondents however, strongly
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resist the request stating that the petitioners have not even a
semblance of right to the suit property and they have been
reaping benefits by prolonging the matter. It is being contended
that original appeal is of 2000.
8. Taking stock of overall situation, it appears to be expedient
that the petitioners shall be given an opportunity to do away
with obstacles and time take steps as may be required in the
matter of about two months and compliance and requisites
would be decided on merits and in accordance with law. Appeal
to proceed with and be decided within four months after expiry
of initial two months for aforesaid. In case of failure to take
steps and do good about requisites within aforesaid period,
status quo order which had been declared to be non operative,
shall take effect immediately and it would be open for the
respondents to proceed with the execution. Petitioners shall
show bonfides by depositing a sum of Rs.20,000/- in the
appellate court within a period of four weeks from today. Its
appropriation would be decided at the end of decision in appeal.
9. Impugned orders dated 7th December, 2016 passed below
Exhibit-28 by Ad-hoc District Judge-3, Aurangabad and dated 5 th
June, 2017 below Exhibit-41 in Regular Civil Appeal No.272 of
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2012 by District Judge-14, Aurangabad are set aside. Writ
petition stands allowed in aforesaid terms and rule is made
absolute accordingly.
[SUNIL P. DESHMUKH, J.]
drp/wp8317-17
