Prakash Shesherao Suryawanshi ... vs Nilabai Prakash Suryawanshi And ...
2021 Latest Caselaw 2415 Bom

                                           (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  933 CIVIL APPLICATION NO.8548 OF 2020
                                    IN
                               SA/492/2015

           PRAKASH SHESHERAO SURYAWANSHI AND OTHERS
                                 VERSUS
             NILABAI PRAKASH SURYAWANSHI AND OTHERS
                                    ...
             Advocate for Applicants : Mr. Mukhedkar Amit A.
                  Mr. BG Deshmukh, Adv. For R/1 To3;
                      Mr.AD Hande, Adv. For R/4.
                                          -----
                                     CORAM : SMT.VIBHA KANKANWADI,J.
                                     DATE : 5th February, 2021.
 PER COURT:-

 1.               Heard both sides.                 What can be gathered
 from their submissions is that the T.I.L.R., Nanded
 has gone ahead with measurement and has prepared
 panchanama.                    It     appears      that      the        execution
 proceedings are still pending before 8th Jt.CJJD,
 Nanded and learned Advocate for Respondent Nos. 1
 to 3 submits that in view of the order passed by
 learned District Judge-2, Nanded, precept came to
 be issued.              In fact, when the original decree was
 passed         by      7th     Jt.CJJD,      Nanded       and     the       appeal,
 arising          from         that    decree,      was    decided           by     the
 learned District Judge-2, Nanded, which appears to
 be a modification, therefore, the said decree gets
 merged in the decree passed by the 7 th Jt.CJJD,
 Nanded          and      under        such      circumstance,           when       the
 execution proceedings are still pending, the order
 could not have been a direct precept on the basis
 of theorder passed by the learned District Judge-2,
 Nanded.

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 2.               As       on     today,          it     appears           that        the
 measurement has been carried out and the panchanama
 has been drawn to that extent.                           But, then when the
 Second Appeal is filed, which is for admission, it
 is necessary to stay further proceedings before the
 T.I.L.R.           or     any    other       authority;           so     also,        the
 further          proceedings          in     Regular        Darkhast           to     the
 extent of handing over the possession.                                  Hence,
 following order, -
                                         ORDER

i. The application stands partly allowed;

ii. The judgment and decree dated dated 28.7.2008 passed by learned 7 th Jt.Civil Judge, Junior Division, Nanded in RCS No.598/1999 and the judgment and decree dated 19.10.2012 passed by learned District Judge-2, nanded in Regular Civil Appeal No. 115/2008 are hereby stayed to the extent of possession. So also the further proceedings in Regular Darkhast No. 71/2019 pending before learned 8th Joint Civil Judge, Junior Division, Nanded are stayed only to the extent of handing over the possession as per the decree, till decision in Second Appeal No.492/2015.

( SMT. VIBHA KANKANWADI ) JUDGE BDV