The plaintiff Dr. Chunni Lal Talesara filed a suit for partition on 10.8.1993 seeking partition of suit immovable properties claiming the properties to be belonging to the Hindu Undivided Family of his father Late Shri Laxmi Chand Talesara against his four brothers including heirs of his two brothers claiming 1/5th share in the suit properties. The suit properties were indicated in three schedules ‘A’, ‘B’ & ‘C’ filed with the plaint.

After trial, the Additional District Judge, Nathdwara passed a preliminary decree on 5.2.2003 and held plaintiff entitled to 1/5th share in four properties i.e. (a) four storied house at Mohalla Brajpura, Nathdwara, (b) three storied shop at Mohalla Chopati, Nathdwara, (c) another shop at Mohalla Chopati, Nathdwara and (d) Agricultural land and well ad measuring 10 Bigha 18 Biswa at Village Odan, Tehsil Nathdwara and rejected the suit qua the rest of the properties.

Feeling aggrieved, plaintiff Dr. Chunni Lal filed S.B. Civil First Appeal No. 171/2003 along with application seeking interim relief in the nature that the respondents be restrained from dealing with the suit properties and a direction to maintain status quo.

In the first appeal few respondents led by Rajendra Talesara filed cross-objections being S.B. Civil Cross Objection No. 2/2007.

After passing of the preliminary decree, final decree proceedings were initiated by plaintiff Dr. Chunni Lal and the trial court after getting Commissioner’s Reports dated 1.10.2003 and 22.9.2004 passed a final decree on 29.11.2005, inter-alia directing (a) partition of the four storied house by way of handing over an area of the house having construction ad measuring 290.6 Sq.fts., (b) delivery of possession one of the shop situated at Chopati Bazar, Nathdwara, and (c) Partition of Agricultural land by delivering possession of land in two Khasra ad measuring 2 Bigha 4 Biswa and 1/10th share in the well.

Feeling aggrieved, the defendant – Chatarlal filed S.B. Civil First Appeal No. 76/2006 against the final decree dated 29.11.2005.

By order dated 14.2.2006 execution of the decree passed by the trial court was ordered to be stayed. However, on an application filed by the respondent – Dr. Chunni Lal Talesara seeking recall of the order dated 14.2.2006 on account of his caveat not having been dealt with by the office, by order dated 25.7.2006, the interim order dated 14.2.2006 was recalled. Whereafter on 18.8.2006, execution was again stayed by this Court pending service on other co-respondents.

After completion of service on all the respondents in both the appeals being SBCFA No.171/2003 and SBCFA No.76/2006 the parties were heard for final order on stay applications.

By order dated 23.5.2014, both the parties were directed to place on record the expected mesne profit / income of the suit properties along with supporting evidence for the purpose of just disposal of the stay applications. Both the parties have filed their respective affidavits in this regard.

It is submitted by learned counsel for the appellant-defendant that the final decree passed by the trial court deserves to be stayed as the trial court ignored the practical aspect while ordering division of the residential house by metes and bounds resulting in disruption of the residents therein and the plaintiff is a resident of Delhi, who even otherwise is not likely to utilize the said house. It is further submitted that the appellant is doing business at the shop situated at Chopati which has been allotted to the plaintiff resulting in deprivation of livelihood to the appellant and the partition is highly improper. Further if during the pendency of the appeal, the decree passed by the trial court is not stayed, the very purpose of filing appeal would be frustrated.

Learned counsel for the plaintiff vehemently opposed the grant of any interim relief.

It is submitted that the appellant has not approached this Court with clean hands and has suppressed material and relevant facts from this