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Bombay High Court

MR.SHAMIM AKHATAR SIRAJUDDIN AND ORS.versusMR.HAFIZUR REHMAN K SHIAKH AND ORS.

Decided
Disposal
Disposed Off

Holding

The court stayed the operation of the decree subject to the defendants depositing Rs 5,000 per month in a fixed deposit as stipulated.

Summary

The appellants sought a stay of the judgment and decree dated 02‑02‑2018 that awarded possession of a suit property to the plaintiff. An ad‑interim stay had been extended only up to January 2019, after which the defendants continued to occupy the property, which had been earmarked for redevelopment and the defendants were allotted a 180 sq ft transit accommodation by the corporation. The court examined whether the decree could be stayed despite the lapse of the ad‑interim order and whether the defendants could remain in the allotted accommodation. It held that a stay could be granted but imposed strict conditions: the defendants must deposit Rs 5,000 per month for the period August 2003 to 31 March 2026 and thereafter, with the deposits placed in a fixed deposit until the appeal is finally decided, and any default would vacate the stay. The application was disposed with the stay order subject to those conditions.

Issues considered

  • Whether the decree granting possession to the plaintiff should be stayed pending appeal
  • Whether the defendants may continue to occupy the transit accommodation in the absence of a fresh ad‑interim order
  • What conditions, if any, should be imposed to secure the plaintiff's rights during the pendency of the appeal

Subjects

  • stay of decree
  • ad‑interim relief
  • possession suit
  • redevelopment
  • transit accommodation
  • fixed deposit
  • Civil Procedure Code

Judgment

                           HMK                              1                    19. CA-1731-2018.doc


                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CIVIL APPELLATE JURISDICTION
         Digitally
SAYYED   signed by
         SAYYED
SAEED    SAEED ALI                         CIVIL APPLICATION NO. 1731 OF 2018
ALI      AHMED ALI
         Date:
AHMED    2026.02.13                                        IN
ALI      11:04:32
         +0530
                                              FIRST APPEAL NO. 578 OF 2018

                      Shamim Akhatar Sirajuddin & Ors.                   ….Applicants/Appellants

                                 Versus

                      Hafizur Rehman K. Shaikh & Ors.            .…Respondents
                      __________________________________________________________________

                      Mr. S. P. Shrivastava for the Appellants.
                      Mrs. Shakuntala Mudbidri for the Respondents.
                      __________________________________________________________________

                                                         CORAM : JITENDRA JAIN, J.
                                                         DATED : 12th FEBRUARY 2026


                      P. C. :

                      1.        The ad-interim relief was continued by order dated 04.05.2018 till
                      the next date of hearing. Thereafter, the ad-interim was continued by order
                      dated 10.12.2018 and the said order was upto 18.01.2019. After January
                      2019, there is no order extending the stay.

                      2.        It is also important to note that, none of the above orders are
                      speaking orders, but it was only an ad-interim arrangement. The present
                      application seeks stay of the operation of judgment and decree dated
                      02.02.2018, by which, the suit filed for possession by the plaintiff was
                      decreed. However, since the possession was with the defendants, the ad-
                      interim was granted and is continued upto January 2019. Instead of there
                      being no order after January 2019, the defendants have continued to
                      occupy.
     HMK                              2                    19. CA-1731-2018.doc


3.     In the interrengum, the suit property went for redevelopment. The
defendants have been given transit/permanent accommodation by the
Corporation. The defendants are now occupying the said transit
accommodation, which is around 180 sq. ft. as per information given by the
learned counsel for the defendants.

4.     There is some confusion regarding the alternate premises allotted to
the defendants is a transit accommodation or permanent accommodation.

5.     As of today, the suit is decreed in favour of the plaintiff. However,
same is subject matter of the present appeal. The impugned order is stayed
subject to following conditions :-


       (a) Defendants will deposit Rs.5,000/- per month from
           August 2003 till 31st March, 2026. The said deposit
           should be made within eight weeks from today in this
           Court.

       (b) From 01st April, 2026 defendants to deposit Rs.5,000/-
           per month in this Court till the final disposal of the
           appeal.

       (c) Both the above amounts should be invested in fixed
           deposit and fixed deposit should be kept alive till the
           disposal of the appeal.

       (d) If there is default of any deposit, which is directed to be
           made under this order, then the stay will be automatically
           vacated and the plaintiff will be entitled to take
           appropriate measures in accordance with law.

       (e) Plaintiff is at liberty to make appropriate application for
           withdrawal of the above amount and the Court will
           consider the same at the appropriate time.


6.     Time for depositing the amount will not be extended at any cost. The
amount deposited will be subject to the outcome of this appeal.
     HMK                             3                      19. CA-1731-2018.doc


7.     Civil Application No. 1731 of 2018 is disposed of.




                                                   [ JITENDRA JAIN, J. ]


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