Shankar S/O Raghwalu Aknurwar vs Shankar S/O Pandurang Wasekar
2018 Latest Caselaw 384 Bom

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

                         WRIT PETITION NO. 484/2016

       Shankar S/o Raghwalu Aknurwar,
       Aged about 69 years, Occu. Retired, 
       R/o Mul, Tah. Mul, District, Chandrapur  ... PETITIONER


                               ...V E R S U S...


       Shankar S/o Pandurang Wasekar, 
       Aged about 64 years, Occu. Retired, 
       R/o Mul, Tah. Mul. District. Chandrapur ... RESPONDENT

 ===================================
     Shri D.L. Dharmadhikari, Advocate for the petitioner
            Shri A.De, Advocate for the respondent
 ===================================

                                           CORAM:- Z.A. HAQ,J.

th DATED :- 12 JANUARY, 2018

ORAL JUDGMENT :-

Heard.

Rule. Rule made returnable forthwith.

2] The respondent has succeeded in the civil suit and a

decree is granted in his favour directing the petitioner/defendant

to vacate 1.5 feet space in the lane in question and to remove the

wall constructed by him in the lane between the house of the

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plaintiff and the house of the defendant. The defendant has

challenged the judgment and decree passed by the trial Court in

appeal which is pending before the District Court. In this appeal,

the defendant had filed an application under Order 41 Rule 5 of

the Code of Civil Procedure which is dismissed by the impugned

order.

3] The learned District Judge has recorded that the claim

of the defendant (appellant before the District Court) does not fall

in either of the clauses (a), (b) or (c) of Rule 5 of Order 41 of the

Code of Civil Procedure.

4] As the dispute is going on since 2000, the learned

advocate for the petitioner as well as the respondent have agreed

that if the hearing of appeal is expedited, the parties would

maintain status-quo regarding the status of the wall in question

and the user of 1.5 feet lane by the plaintiff till the disposal of

appeal.

5] In view of the submissions made by the learned

advocates for the respective parties, the learned District Judge is

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directed to dispose the appeal till 05/05/2018. Till then, the

respondent-decree holder shall not take any coercive action

against the petitioner-defendant as per the judgment and decree

passed by the trial Court.

With the above directions and observations, the writ

petition is disposed. In the circumstances, the parties to bear their

own costs.

JUDGE

Ansari