Milind S/O Sheshrao Khade vs Rudrapratap @ Shivba M. Khade Thr. ...
2021 Latest Caselaw 2714 Bom

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

                         WRIT PETITION NO.329/2021
 Milind s/o Sheshrao Khade .vs. Rudrapratap alias Shivba Milind Khade (Minor)
  through his natural guardian mohter i.e. Sau. Kshipra Milind Khade and anr.
_______________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions            Court's or Judge's orders.
and Registrar's Orders.
                     Mr. K. P. Mahalle, Advocate for petitioner.

                     CORAM :        V.M. DESHPANDE, J.

DATED : FEBRUARY 10, 2021

Heard Mr. Mahalle, learned counsel for petitioner. By this petition, the petitioner is challenging the order passed below Exh.-11 in Regular Civil Appeal No.61/2019 passed by learned Principal District Judge, Amravati dated 03.02.2020 dismissing the application for stay of the judgment and decree.

The petitioner is natural father of the respondent, who was required to file suit for partition through his mother. The suit was registered as Regular Civil Suit No.142/2013. The learned 5th Jt. Civil Judge Junior Division, Amravati, vide judgment and decree dated 02.05.2017 found that property is an ancestral property and respondent is having share as a coparcener. By judgment and decree, it was declared by Court that the petitioner as well as respondent are having ½ share.

Petitioner filed an appeal before the District Judge, Amravati being Regular Civil Appeal No. 61/2019. In that, he filed an application for stay of the judgment and decree of the trial Court. Admittedly, petitioner is in possession of the entire land. The reason for rejecting application for stay at the hands

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of the learned Principal District Judge is that the appellant is addicted to vices. Therefore, if the stay is granted, there is a chance that the petitioner will alienate the property and will create third party interest. Learned counsel for the petitioner, submitted that the petitioner will give an undertaking that he will not create any third party interest.

Normally, such an undertaking can be accepted. However, in the light of the reasoning given by the learned District Judge that the petitioner is addicted to the vices, in my view, the learned Principal District Judge has rightly rejected the application for stay since it may create multiplicity of litigation and respondent, who is aged about 5 years, will have to litigate with third persons along with the present petitioner.

In view of above, the writ petition is rejected. No order as to costs.

JUDGE

kahale