Smt.Vatsalabai Baban Dhumal vs Baban Jaywant Kad And Ors
2021 Latest Caselaw 3408 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO. 641 OF 2021

      Smt. Vatsalabai Baban Dhumal                                ....Petitioner

              V/s.

      Baban Jaywant Kad and Ors                                   .....Respondents

      Mr. Venkatesh A. Shastry for the Petitioner
      Mr. Sushant Prabhune for Respondents


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 23, 2021.

      P.C.:

      1]      This Petition is by Deree-holder in R.C.S. No. 1076 of 2008.




      2]      Respondent feeling aggrieved, preferred an Appeal which was

time barred and as such, alongwith Application for condonation of

delay, Application Exh. 8 was taken out seeking stay to the execution

of the Judgment and Decree which came to be allowed vide impugned

order dated 21/10/2020.

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3] Shri. Shastry, learned counsel appearing for original Plaintiff-

Decree holder while questioning the order impugned would urge that

there is no express provisions in Code of Civil Procedure, 1908 which

can be expressly exercised for staying the Decree for injunction.

According to him, as a consequence of stay to the Decree for

injunction, Respondent by using the said order might dispossess the

Petitioner. Apart from above, the contentions are, in case if the delay

is condoned, same order would operate.

4] Counsel for the Respondent would support the order impugned

on the ground that there are suffcient reasons furnished therein

justifying the order of grant of stay to the execution of the Decree.

5]     Considered rival submissions.




6]     Right of an Appeal in favour of Respondent is a substantive

right. An Appeal is a continuation of the Suit. Appellate proceedings

under Section 96 are governed in accordance with the procedure laid

down under Order XLI of CPC and Rule 5 there of contemplates

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powers with Appellate Court to stay the Decree, however, such powers

has to be exercised by the Appellate Court in case of grant of stay by

furnishing appropriate reasons.

7] With the assistance of respective counsel, I have perused the

reasons furnished in the order impugned wherein the Appellate

Court has stayed the execution of Decree passed in Special Civil Suit

No. 1076 of 2018 till the decision on the Application for delay

condonation.

8] I am informed that parties to the proceedings i.e. condonation

of delay proceedings are already served.

9] In the aforesaid background, in my opinion, no interference is

called for in extraordinary jurisdiction.

10]    Petition fails, stands dismissed.









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11]    Appellate Court is directed to conclude the hearing of the delay

condonation Application within period of one month from the date of

production of this order.

[NITIN W. SAMBRE, J.]