Irfan Nashibdar Ansari vs Rajni Ramchandra Pamnani And Ors
2021 Latest Caselaw 2409 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                           WRIT PETITION (ST.) NO.2845 OF 2021



     Irfan Nashibdar Ansari                          ....   Petitioner

             Vs.

     Rajani Ramchandra Pamnami                       ....     Respondents
     & Ors.


     Ms. Akshata Nayak i/by Nayak & Co. Law Firm for Petitioner.


                                         Coram : NITIN W. SAMBRE, J.

Date : 5TH FEBRUARY, 2021 P.C.:

1. Not on board. Mentioned. Taken on board.

2. The Petitioner is the judgment-debtor No. 3 against whom

warrant of possession is pending execution. As such the matter was

mentioned for production as the possession warrant is already issued.

3. Learned counsel for the Petitioner-Judgment debtor No.3

would urge that the decree under execution is an ex-parte decree

against which Petitioner has already initiated proceedings being Civil

Miscellaneous Application No.1513 of 2019 under the provisions of

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Order IX, Rule 13 Code of Civil Procedure for setting aside an exparte

decree. According to her, in the said proceedings, there is a delay and

till date no orders passed on the pending application. Further

submissions are, the Petitioner has initiated Regular Civil Suit No. 87 of

2020 for declaration and permanent injunction, as the

defendants/Judgment debtor in Darkhast, under which order impugned

is passed claiming to have played fraud on the Judgment debtor No.3.

By inviting attention of this Court to the provisions of Order XXI, Rule

29, the submissions are, in view of pendency of Regular Civil Suit

No.87 2020 between the parties also the proceedings being Civil

Miscellaneous Application No. 1513 of 2019, this Court is required to

stay execution of the decree.

4. If aforesaid contentions of the Petitioner are appreciated,

the Petitioner/judgment debtor has moved an application under Order

XXI, Rule 29 C.P.C. seeking stay to the execution proceedings based on

the pendency of Regular Civil Suit No. 87 of 2020 and Civil

Miscellaneous Application No. 1513 of 2019.

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5. The fact remains that earlier order passed under Order XXI,

Rule 29 C.P.C. were not questioned and as such the same will come in

the way of the Petitioner, in the matter of challenge to the order

impugned dated 29th January, 2021 wherein an application for issuance

of possession warrant at the behest of decree-holder came to be

allowed.

6. Apart from above, in case if the Petitioner/Jugment debtor

No. 3 succeeds in Civil Miscellaneous Application No. 1513 of 2019 or

in Regular Civil Suit No. 87 of 2020, it is always open for the Petitioner

to take recourse to the provisions of Section 144 of C.P.C. for restoration

of possession of the suit property.

7. In the aforesaid background, no case for interference is

made out in extra ordinary jurisdiction of this Court.

8. The Writ Petition as such fails, stands dismissed.

( NITIN W. SAMBRE, J. )