High Court
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{1} wp1372-16.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1372 OF 2016Girish Dharmavir Madan Through Power of Attorney Holder PETITIONERVERSUSNandkumar Shankarrao Rasne and Others RESPONDENTS.......Mr. Amol K. Gawali, Advocate for the PetitionerMr. Anuj A. Fulfagar, Advocate for Respondent No.1....… [CORAM : MANJUSHA DESHPANDE, J.] DATE : 21 st FEBRUARY, 2025 ORDER :1.Mr. Nikhil S. Jaju, learned Advocate states that he wasappearing on behalf of Respondent No.1, however, in view ofappearance caused by Mr. Fulfagar on behalf of RespondentNo.1, he may be discharged from appearing on behalf ofRespondent No.1. In view of the same, Mr. Jaju, learned Advocateis discharged from appearing on behalf of Respondent No.1.2.This petition arises out of order dated 29th January, 2016passed by 4th Joint Civil Judge, Junior Division, Ahmednagar belowExhibit-141 in Regular Darkhast No. 175 of 2003.3.The case of the Petitioner is that the Petitioner is the {2} wp1372-16.docJudgment Debtor and Respondent No.1 - Decree Holder inRegular Civil Suit No. 632 of 1983. The Decree Holder had soughtpossession warrant on the basis of the decree. Though initially,the Executing Court had turned down the request of the decreeholder for issuance of possession warrant, the decree holder hadchallenged the said order by filing Writ Petition No. 8030 of 2011before this Court. However, this Court has refused to entertainthe Writ petition and has confirmed the order dated 27thSeptember, 2011 passed by the Executing Court. Another WritPetition No. 7676 of 2012, was filed by the decree holder for thesame relief. This Court by order dated 12th September, 2012 hasdismissed Writ Petition No. 7676 of 2012 observing thatsubsequent writ petition for the same relief cannot beentertained. The decree holder, thereafter, again filed WritPetition No 6249 of 2015 without pointing out filing of earlier twoWrit Petitions, as a result this Court has passed an order on 17thNovember, 2015, thereby set aside the order passed by theExecuting Court below Exhibit-117 and allowed the applicationExhibit-117 and further directed the Executing Court to passconsequential order of issuance of possession warrant.4.In view of the same, the Petitioner filed Review ApplicationNo. 1 of 2016 in Writ Petition no. 6249 of 2015, by pointing out {3} wp1372-16.docthe earlier orders passed by this Court wherein this Court hasrefused to interfere with the orders passed by the ExecutingCourt. However, the Review Application was rejected. Therefore,Petitioner filed SLP No. 3250-3251 of 2016 in the Supreme Courtchallenging order dated 12th January, 2016. During the pendencyof the SLP before the Supreme Court, the Petitioner had filedapplication Exhibit-141 in the Execution Petition praying to staythe effect of issuance of possession warrant. The ExecutingCourt, while rejecting application Exhibit-141 has observed thatthough this Court had granted sufficient time while deciding WritPetition No. 6249 of 2015, and the time granted by this Court hasalready expired, the Petitioner could not secure positive ordersfrom the Supreme Court, therefore, the decree holder cannot bedenied the fruits of the decree.5.In the meanwhile, according to the Petitioner, he haspurchased portion of the suit property from one of the jointowner and claimed entitlement to the property as owner of thepart of the said premises on the basis of the rights purchased. Hehad filed a suit for partition and separate possession. In the saidsuit, a decree is passed, determining shares of the parties to thesuit. However, some defendants preferred Appeal against thesaid decree. The decree has been modified in Regular Civil {4} wp1372-16.docAppeal No. 9 of 2005 to the extent of shares receivable by theparties. Second Appeal is also preferred against the order passedin Regular Civil Appeal No. 9 of 2012, When the order belowExhibit-141 dated 29th January, 2016 was challenged in presentWrit Petition, this Court on 3rd February, 2016 passed an orderobserving about the developments that had taken place. The SLPfiled by the Petitioner was still pending before the Supreme Courtwhen order dated 3rd February, 2016 was passed by this Courtand the SLP was posted for hearing on 8th February, 2016. Inview of pendency of the SLP before the Supreme Court, thisCourt has passed an order directing the parties to maintainstatus quo till 15th February, 2016.6.Learned Advocate for the Petitioner submits that when thematter was listed before the Supreme Court on 8th February,2016, the Supreme Court has passed an order requesting thisCourt to dispose of the Second Appeal expeditiously andpreferably within a period of six months from the date of theorder. It was further directed that the proceedings ofdispossession of the Petitioner from the tenanted premises shallbe deferred till such time.7.In the meanwhile, the Second Appeal which was pending {5} wp1372-16.docbefore this Court was decided by this Court by order dated 30thJune, 2016. Though the Second Appeal is dismissed by this Court,stay to the execution of decree of eviction was deferred till actualpartition is effected as per the decree, which is subject matter inthe Second Appeal i.e. suit for partition and separate possession.8.SLP No. 3250-3251 of 2016 was decided by the SupremeCourt by its order dated 5th August, 2016. While deciding the SLP,the Supreme Court has directed the Executing Court to takesteps to appoint Court Commissioner in the final decreeproceedings so as to identify the respective shares. This was tobe completed within a period of two months from the date ofproduction of copy of the said order by either of the partiesbefore the Trial Court and till such time, the eviction proceedingsas against the Petitioner was directed to be kept in abeyance.9.The Supreme Court had made it clear that the special leavepetition filed against the judgment in Second Appeal No. 611 of2010 shall have no bearing on the eviction proceedings.10.Learned Advocate appearing for Respondent No.1 pointsout that so far as subject matter of the present Writ Petition isconcerned, it is limited only to the application made by thePetitioner seeking stay to the Execution Proceedings for one
Decision
{6} wp1372-16.docmonth, pending the SLP. Efficacy of that application has been lostin view of the subsequent developments. Learned Advocate forthe Petitioner, on instructions, points out that the ExecutionPetition itself has been disposed by the Executing Court by orderdated 17th April, 2017. It is submitted that possession of the suitproperty has been handed over to the decree holder by the bailiffand report, Panchanama, as well as possession receipt havebeen filed on record. It is observed that the possession receiptshows that the possession of the suit property is given to thedecree holder on 4th January, 2017. The decree holder hasappeared before the Court and has given pursis at Exhibit-183stating that he has received possession of the suit property.Hence, the decree has been satisfied and in view of the fact thatRegular Darkhast No. 175 of 2003 is disposed of this Writ Petitionhas been rendered infructuous. Copy of order dated 17th April,2017 passed below Exhibit-1 in Regular Darkhast No. 175 of2003 is taken on record and marked “X” for identification.11.Since the present Writ Petition is limited only to the extentof order passed below Exhibit-141 in Regular Darkhast No. 175 of2003 and since Regular Darkhast No. 175 of 2003 itself has beendisposed of by the Executing Court, by order dated 17th April,2017, nothing survives to be adjudicated in this Writ Petition. {7} wp1372-16.docHowever, considering the subsequent developments that havetaken place in the matter, the parties are at liberty to takerecourse to appropriate proceedings. With these directions, theWrit Petition is disposed of. [ MANJUSHA DESHPANDE ] JUDGE drp/wp1372-16.doc