Digambar Namdeorao Sulakhe vs Arvind Sakharamappa Jirwankar
2017 Latest Caselaw 8224 Bom

Judgment

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                                             1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

                    SECOND APPEAL NO.596 OF 2017

Digambar Namdeorao Sulakhe,
Aged about 56 years, Occupation Business,
R/o Chikhli, Taluka Chikhli, District
Buldana.                                                             ..... Appellant.

                                   ::   VERSUS   ::

Arvind Sakharamappa Jirwankar,
Aged about 50 years, Occupation Business,
R/o Chikhli, Taluka Chikhli, District
Buldana.                                                         ..... Respondent.

================================================================
          Shri H.D. Futane, Counsel for the appellant.
          Shri R.G. Kavimandan, Counsel for the respondent.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : OCTOBER 13, 2017.

ORAL JUDGMENT

1. Both learned counsel for the parties are permitted

to correct the typing mistake that occurred in paragraph No.4

at page No.3 of Civil Application No.1157 of 2017.

.....2/-

Judgment

SA596.17 21

2. Heard learned counsel Shri H.D. Futane for the appellant

and learned counsel Shri R.G. Kavimandan for the respondent.

3. The appeal is filed by the original defendant.

4. The respondent plaintiff filed a suit for injunction against

the appellant defendant claiming permanent injunction that the

appellant defendant shall not alienate or dispose of the suit property

that is Plot No.1868, Ward No.19, CTS No.46 situated at Mouza Chikhali

which is more particularly described in the plaint. The suit was

registered as RCS No.19 of 2005. The suit was dismissed by judgment

and decree passed by learned Magistrate at Chikhali on 12.8.2008.

5. Feeling aggrieved by the said decree, respondent

plaintiff preferred an appeal in the Court of learned Principal District

Judge at Buldana. The said was registered as Regular Civil Appeal

No.103 of 2008 and vide judgment and decree dated 14.8.2015 the lower

appellate court allowed the appeal and thereby set aside the judgment

and decree dated 12.8.2008 passed in RCS No.19 of 2005. The lower

.....3/-

Judgment

SA596.17 21

appellate court also granted injunction in favour of the respondent

plaintiff thereby restraining the appellant defendant, his heirs or

anybody on his behalf permanently from alienating, mortgaging, and

disposing the suit property in any manner.

Feeling aggrieved thereby, the present appeal is filed.

6. The appeal was barred by limitation and, therefore,

application for condonation of delay was filed. The said application

for condonation of delay was allowed by this Court on 7.6.2017.

7. Learned counsel Shri R.G. Kavimandan appears for the

respondent plaintiff.

8. Learned counsel Shri H.D. Futane for the appellant

defendant and learned counsel Shri R.G. Kavimandan for the

respondent plaintiff submit that during the pendency of the present

second appeal, parties to this appeal have amicably settled the dispute

out of the Court and, therefore, they moved a joint application under

.....4/-

Judgment

SA596.17 21

Order XXIII Rule 3 of the Code of Civil Procedure for recording

compromise decree. The said application is duly affirmed by appellant

defendant Digambar Namdeorao Sulakhe and respondent plaintiff

Arvind Sakharamappa Jirwankar.

9. Both of them are personally present in the Court. They

are duly identified by their respective learned counsel.

10. According to compromise arrived in between them, the

appellant defendant handed over Pay Order of Rs.2.00 Lacs to

respondent plaintiff Arvind Sakharamappa Jirwankar. In receipt of

the said amount, respondent plaintiff Arvind Sakharamappa

Jirwankar denounces his all claims in respect of the suit property.

11. In that view of the matter, the second appeal is allowed.

12. Judgment and decree passed the lower appellate court is

hereby set aside. Instead of that, there shall be compromise decree in

terms of application under Order XXIII Rule 3 of the Code of Civil

.....5/-

Judgment

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Procedure.

13. The decree be drawn accordingly. No order as to costs.

14. The second appeal and civil application are disposed of

accordingly.

JUDGE

!! BRW !!

...../-