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SCA/15745/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15745 of 2010
======================================
MAGANBHAI
POPATBHAI PATEL
Versus
MUKUNDBHAI
HARILAL DALAL
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Appearance :
MR
GAJENDRA P BAGHEL for the Petitioner
MR AMIT V THAKKAR for the
Respondent
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 11/02/2011
ORAL
ORDER
By
way of filing this petition the petitioner has challenged the order
dated 17th
September 2010 passed below Exhibit 15 in Regular Civil Appeal No.5
of 2009 passed by the learned Additional District and Presiding
Officer, 2nd
Fast Track Court, Surat vide which he rejected the application below
Exhibit 15.
Rule.
Mr Thakkar waives service of notice of Rule qua the respondent.
With the consent of the parties, the matter is taken up for final
hearing today itself.
The
aforesaid Regular Civil Appeal is filed by the petitioner against the
order passed below Exhibit 116 in Small Civil Suit No.466 of 1988 by
the learned Additional Small Cause Judge, Surat. The aforesid suit
was filed by the respondent herein – original plaintiff. The
learned trial Judge partially allowed the said suit and directed the
petitioner herein to pay mesne profit at the rate of Rs.425 per month
to the plaintiff till the realisation of possession of suit premises.
The petitioner herein filed appeal against the aforesaid order.
During
the pendency of the appeal, the respondent – original plaintiff
has filed Execution Petition No.29 of 2008 before the executing
court. The petitioner has, therefore, filed application Exhibit 15
praying for stay of the execution proceedings. The said application
is rejected by the appellate court. If the said application is not
granted, then, the appeal of the petitioner would become infructuous.
Hence, the order of the appellate Court is required to quashed and
set aside and execution proceedings are stayed pending the appeal.
It
is open for the respondent to move an application before the
appellate court to hear and dispose of the appeal expeditiously and
in any case within 90 days either from the date of receipt of writ of
this Court or from the date of application, which is to be filed by
the respondent.
With
the aforesaid observations and directions, petition is allowed. Rule
is made to the aforesaid extent.
It
is hoped that the parties before the appellate court will render
their cooperation and assistance for the expeditious disposal of the
appeal and will not seek any adjournments.
(K.S.Jhaveri,
J.)
*mohd
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