Bombay High Court
Kisna S/O Ganpat Sawarkar vs Shri Bhaurao @ Lahanu S/O Ganpat ... on 29 March, 2017
Bench: Ravi K. Deshpande
1 wp1781.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1781 OF 2015
Kisna Ganpat Sawarkar,
aged about 72 years, Occ. Cultivator,
R/o. Ram Mandir, Ward No. 5,
Shelu, Tah., Shelu, Distt. Wardha ...... PETITIONER
...VERSUS...
Shri Bhaurao @ Lahanu s/o Ganpat Sawarkar,
aged about 70 years, R/o. Ram Mandir,
Ward No. 5, Shelu, Tah. Shelu,
Distt. Wardha. .......... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri Shantanu Ghate, counsel for Petitioner
Shri S.K.Bhoyar, counsel for Respondent
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th
DATE : 29 MARCH, 2017 .
ORAL JUDGMENT
1] On 01.04.2015, this Court passed an order as
under;
"Issue notice for final disposal of the matter, returnable after
Summer Vacation 2015.
Respondent be served by R.P.A.D in addition to regular mode
of service.
In the meantime the order impugned shall remain stayed.
2 wp1781.15.odt
The petitioner to deposit an amount of ₹.20,000/- in this court
within a period of four weeks from today.
If the amount is not deposited, the interim order shall stand
vacated".
Rule made returnable forthwith.
Heard the matter finally by consent of learned
counsels appearing for the parties.
2] The operative portion of the order passed by the
trial Court on 09.06.2014 in Regular Civil Suit No. 20 of 2010
is reproduced below.
"1. The suit is decreed with costs whereas the counter
claim is dismissed with costs.
2. It is hereby declared that the plaintiff is having half
share in the suit property bearing field survey No. 186,
1 H 65 R, Mouza Seloo, Tah. Seloo, District Wardha. It
is further declared that defendant is also having half
share in the suit property.
3. The partition of the suit property bearing field survey
No. 186, be effected equitably by the Collector, or any
gazetted sub-ordinate of the Collector in his behalf, in
accordance with the above declaration of share in
conformity with the law for the time being in force
relating to the partition, or separate possession of
share of the said land and the plaintiff be delivered the
possession of the land of his share.
4.The decree be sent to the Collector for compliance of
the direction given in clause 3 in above vide Section 54
of the Code of Civil Procedure.
5. Decree be drawn accordingly.
3 wp1781.15.odt
3] The petitioner has preferred Regular Civil Appeal
No. 162 of 2014, which is pending for adjudication. An
application Exh. 6 was filed before the lower appellate Court
for stay of the decree. On 11.03.2015, the lower appellate
Court passed an order, the operative portion of which is
reproduced below.
"[1] The application Exh.6 is allowed.
[2] The effect, operation and execution of the judgment
and decree passed by the learned Civil Judge, Jr. Dn.
(Jt. Court), Seloo, in R.C.S. No. 20/2010 on
09.06.2014, is stayed till the disposal of the appeal
subject to the condition that the appellant shall deposit
Rs.30,000/- in this Court within the period of four weeks
from today. Further, the appellant shall also deposit
Rs.10,000/- per year in this Court on or before 1 st day
of February of each year till the decision of this appeal.
[3] Hamdast allowed"
4] It is a usual decree for partition and separate
possession. There is no decree for monetary claim. It is not
in dispute that there is no enquiry into the mesne profit
ordered by the trial Court. It is not understood as to on what
basis the lower appellate Court puts conditions of deposit of
the amount. The question of directing the petitioner by
interim order to deposit an amount of Rs.30,000/- in the Court
and to further continue to deposit Rs.10,000/- per year does
not at all arise. The order to the extent imposing condition
4 wp1781.15.odt
cannot, therefore, sustained and it has to be quashed and set
aside.
5] Normally, the appellate Court should not stay the
proceedings under Section 54 of Civil Procedure Code after a
decree for partition and separate possession, as it takes
time. The lower appellate Court in this case should not have
stayed the execution of the decree for partition. Hence, the
proceedings for partition may go on. However, the
possession of the parties shall not be disturbed and at the
conclusion of such proceedings, the parties shall be at
liberty to approach the lower appellate Court, either for grant
of hearing finally or for vacating the interim order.
6] The amount of Rs.20,000/- deposited by the
petitioner is directed to be withdrawn by the petitioner along
with interest, if any, accrued thereon.
Rule is made absolute in above terms. No
orders as to costs.
JUDGE
Rvjalit
