S MOINI RESORTS PRIVATE LIMITED THR. ITS AUTHORIZED SIGHNATORY v. PETITIONERVSMANGLA BALSINGH THORAT.. RESPONDENTSenior Counsel Ranjit Thorat a/w. Adv. Rohan P. Surve

Diksha Rane 13 WP 7214 2024.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.7214 OF 2024MOHINI RESORTS PVT LTD..PETITIONERVSSHOBHA SUDHARKAR MORE..RESPONDENTWITHWRIT PETITION (ST) NO.3020 OF 2024 M/S MOINI RESORTS PRIVATE LIMITED THR. ITS AUTHORIZED SIGHNATORY..PETITIONERVSMANGLA BALSINGH THORAT..RESPONDENTSenior Counsel Ranjit Thorat a/w. Adv. Rohan P. Surve, Adv. Vikas Joshi for petitioners. Adv. Ketki Gadkari for respondent.CORAM:ARUN R. PEDNEKER, J.DATE:19th AUGUST, 2026.Per Court :WRIT PETITION NO.7214 OF 20241.Heard learned counsel for the parties.2.Learned counsel for the petitioner by the present petitionchallenges the order dated 4th January, 2024 passed on Exhibit-236by the Executing Court. The Executing Court has particularly noticedthat an application filed for execution of a decree which has attainedPage 1 of 419th AUGUST, 2026 Diksha Rane 13 WP 7214 2024.docx finality uptil the Supreme Court for execution of the decree. Theobjection is raised by the obstructionist that the decree cannot beexecuted as the applicant has also filed another suit being SpecialCivil Suit No.1707/2009 for possession of the land which alsoincludes the property in the present suit. It is submitted that thedecree holder has also initiated execution proceedings in Civil SuitNo.1142 of 1965 and the defendant no.4 cannot initiate two parallelproceedings against the third party for the same subject matter andthe person cannot be waxed twice for the same cause. Thus, it is aabuse process of law. 3.Considering the objection raised by the petitioner, theExecuting Court has observed that the decree holder can either electto continue Special Civil Suit No.1707/2009 for relief of possessionor elect the remedy of execution of the decree passed in Civil SuitNo.1142 of 1965.4.Challenging the order passed by the Small Causes Courtdated 4th January 2024, learned counsel for the applicant Mr. Thoratsubmits that the subject matter of the Special Civil SuitNo.1707/2009 is entirely different. The relief claimed in the suitrelates to larger tracks of land and has no bearing upon the presentexecution proceedings. He also submits that the Executing Courtcannot travel beyond the decree and direct the parties to elect aremedy. Objection can be to the subsequent Special Civil SuitNo.1707/2009, if barred by res-judicata. However, in the executionPage 2 of 419th AUGUST, 2026 Diksha Rane 13 WP 7214 2024.docx proceedings initiated, there would be no objection for execution ofthe decree in view of the filing of the subsequent suit.5.Learned counsel appearing for the petitioners also pointsout that an earlier application was also filed for similar relief atExhibit-285 which has been rejected by an order dated 27th March,2019. After dismissal, same objection is raised by the obstructionists, and it is not available for the Executing Court to direct election ofeither of the remedies. Learned counsel submits that he is entitled toexecute the decree in the Civil Suit No.1142 of 1965 notwithstandingfiling Special Civil Suit No.1707/2009 which is for larger track ofland.6.Per contra, learned counsel Ms.Gadkari, appearing for therespondent submits that the petitioner should elect a remedy byproceeding in Special Civil Suit No.1707/2009 or elect a remedy ofexecuting the present decree. She also submits that execution of thedecree is barred by limitation. Learned counsel also submits that shehas a right in the suit property through the judgment debtor no.4and that the decree is barred by limitation.7.The obstructionist is at liberty to take such objection, whichshe has independently taken, and the issue is in consideration beforethis Court in another Writ Petition No.9686 of 2026. However, theExecuting Court cannot direct the decree holder to elect a remedy. Page 3 of 419th AUGUST, 2026 Diksha Rane 13 WP 7214 2024.docx 8.Considering the same, the order passed dated 4th January2024, by the Executing Court directing the petitioner to elect aremedy of either to proceed with execution of the decree or withSpecial Civil Suit No.1707/2009 is erroneous in law and isaccordingly set aside. 9.The Writ Petition is allowed in terms of prayer clause (a).WRIT PETITION (ST) NO.3020 OF 2024 10.Issue notice to the respondent, returnable on 2nd September,2026.[ ARUN R. PEDNEKER, J.]Page 4 of 419th AUGUST, 2026