Vinayak Gyanoba Borole And ... vs Vithal Narayan Hondare And Others
2016 Latest Caselaw 5135 Bom

                                                           WP No. 8445/2015
                                          1




                                                                          
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO. 8445 OF 2015

     1]       Vinayak Gyanoba Borole,
              Age: 54 Years, Occu: Agriculture




                                                 
     2]       Bhimrao Gyanoba Borole,
              Age: 59 Years, Occu: Agriculture
              Both R/o. Janapur Shirol,
              Taluka Udgir, District Latur        ....Petitoners.




                                       
                      Versus

     1]
                             
              Vithal Narayan Hondare,
              Age: 58 Years, Occu: Agriculture.
                            
     2]       Tukaram Gunadaji Chinchole,
              Age: 62 Years, Occu: Agriculture

     3]       Amol Vithal Chinchole,
              Age: 39 Years, Occu: Agriculture
      


     4]       Mainabai Vithal Chinchole,
   



              Age: 59 Years, Occu: Household

     5]       Sanju Govindrao Halse,
              Age: 39 Years, Occu: Agriculture





              All R/o. Janapur [Shirol],
              Taluka Udgir, District Latur        ...Respondents.


     Mr. Mahesh K. Bholse h/f           Mr. Parag V. Barde, Advocate for
     petitioners.





     Mr. R.S. Shinde, Advocate for respondent No.1.

                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 31st August, 2016.
     JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

WP No. 8445/2015

2) The petition is filed to challenge the order made by

the learned District Judge & Additional Sessions Judge, Udgir on

application, Exh. 5, in Regular Civil Appeal No. 43/2014. The

application was filed for grant of stay to the execution of decree

given in Regular Civil Suit No. 480/2001 by the learned Civil

Judge, Junior Division, Udgir. The District Court has refused to

grant stay by observing that the delay condonation application

filed along with the application filed for permission to deposit the

cost ordered by the District Court is not yet decided and so, the

stay cannot be granted.

3) Technically, it can be said that the Court had power

to consider the stay application even when such miscellaneous

application was pending. In any case, the submissions made

show that the cost amount is now deposited in the Court and the

appeal itself is registered. In view of this circumstance, this

Court holds that opportunity needs to be given to the present

petitioners to argue on stay application on merits and the

District Court needs to decide stay application on merits.

4) In view of these circumstances, the petition is

allowed. The order made by the learned District Judge, Udgir on

WP No. 8445/2015

Exh. 5 in Regular Civil Appeal No. 43/2014 is hereby set aside.

The District Court is to hear the application on merits and decide

it within one month from today. Cost amount deposited in this

Court is to be sent to executing court and that Court will

consider this amount while deciding the right of plaintiff to get

the mesne profit.

Authenticated copy is allowed to both the sides.

                              ig              [ T.V. NALAWADE, J. ]
                            
     ssc/