By this application, the applicants seek stay of the judgement and decree dated 30.11.2007 passed by the learned Additional District Judge, Rajkot in Regular Civil Appeal No.20 of 2004.
Heard Mr. G. M. Joshi, learned advocate for the applicants and Mr. Kamal Sojitra, learned advocate for the respondents No.1.2.1 to 1.2.3.
The record of the case indicates that the applicants herein had instituted a suit being Regular Civil Suit No.2682 of 1994 in the Court of the learned Third Joint Civil Judge (S.D.), Rajkot, which came to be dismissed vide judgement and decree dated 22.9.2003. The applicants carried the matter in appeal before the learned Additional District Judge, Rajkot being Regular Civil Appeal No.20 of 2004. By a judgement and decree dated 30.11.2007, the appeal came to be dismissed and the judgement and decree passed by the trial court came to be confirmed. By this application, the applicants seek stay of the above referred judgement and decree passed in Regular Civil Appeal No.20 of 2004.
From the averments made in the application, it appears that the respondents have instituted a suit against the applicants for possession of the suit premises based upon the impugned judgement and decree passed by the lower appellate court. It is in these circumstances that the applicants seek stay of the judgement and decree passed by the lower appellate court.
Considering the fact that the suit instituted before the trial court has been dismissed and the appeal preferred by the appellants against the judgement and decree passed by the trial court has also been dismissed, no case has been made out for grant of interim relief as prayed for.
It is always open for the applicants to plead before the trial court that the impugned judgement and decree passed by the lower appellate court has not attained finality inasmuch as, the same is subject matter of challenge before this Court in Second Appeal No.157 of 2008, which has been admitted.
Subject to the aforesaid, the application is rejected.
[HARSHA DEVANI, J.] parmar* Top