Bombay High Court
Jagdishprasad S/O Hiralal Gupta vs Omprakash S/O Chelaram Gurbani on 10 March, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1416/2017
Jagdishprasad S/o Hiralal Gupta,
aged about 71 Yrs., Occu. Business,
R/o Dhobi Gali, Khamgaon,
Tah. Khamgaon, Distt. Buldhana. ..Petitioner.
..Vs..
Omprakash S/o Chelaram Gurbani,
aged about 52 Yrs., Occu. Business,
R/o Zulelal Nagar, Sindhi Colony,
Khamgaon, Distt. Buldhana. ..Respondent.
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Shri P.K. Mishra, Advocate for the petitioner.
Shri Shyam D. Dewani, Advocate for the respondent.
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CORAM : Z.A.HAQ, J.
DATE : 10.3.2017.
ORAL JUDGMENT
1. Heard Shri P.K. Mishra, Advocate for the petitioner and Shri Shyam
D. Dewani, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
3. The judgment debtor has filed this petition and has challenged the
order passed by the Executing Court rejecting the application (Exh. No.36) filed
by him praying that the warrant of possession should not be executed till the
M.J.C. No.4/2016 filed by him is decided.
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The respondent had filed civil suit against the petitioner praying for
decree for eviction, vacant possession and other reliefs which is decreed by the
judgment given on 23rd November, 2007. The petitioner / judgment debtor
had filed first appeal before this Court which was admitted and interim order
was granted in favour of the judgment debtor. As the pecuniary jurisdiction of
District Court is enhanced, the appeal was transferred to the District Court.
This appeal was dismissed for want of prosecution on 4th January, 2016. The
judgment debtor filed an application praying for restoration of the appeal.
This application is pending, however, as interim order is not granted during the
pendency of the application, the Executing Court proceeded and issued warrant
of possession.
The Advocate for the petitioner / judgment debtor argued on several
points, however, could not convince that the impugned order suffers from any
irregularity or illegality which necessitates interference by this Court in the
extraordinary jurisdiction. During the course of hearing it transpired that if the
judgment debtor files an undertaking before the Executing Court that he will
hand over vacant possession of the suit premises to the respondent / decree
holder immediately if the decision of M.J.C. No.4/2016 goes against him and if
the judgment debtor furnishes an undertaking before the Executing Court to
that effect and that he will not seek adjournment in M.J.C. No.4/2016 his
possession may be protected. The matter was kept back for some time.
When the matter was called out again the Advocate for the petitioner /
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judgment debtor has submitted that the judgment debtor has filed the
undertaking before the Executing Court and photocopy of it is placed on the
record of this petition.
4. Considering the facts of the case, the following order is passed:
Though the impugned order is maintained, accepting the
undertaking given on behalf of the petitioner / judgment debtor that he will
not seek adjournment in M.J.C. No.4/2016 and he will hand over vacant
possession of the suit premises within one week to the decree holder if the
decision in M.J.C. No.4/2016 goes against him, it is directed that the
possession of the petitioner / judgment debtor over the suit property shall not
be disturbed till the decision of the M.J.C. No.4/2016.
The learned District Judge shall decide the M.J.C. No.4/2016 till
30th March, 2017.
The petition is disposed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
