Mr. Sanjay Madhukar Kale And Anr vs Mr. Balbhim Bhaguji Thombare
2021 Latest Caselaw 3231 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO.10175 OF 2019



     Mr. Sanjay Madhukar Kale & Ors.                ....   Petitioners
                                                           (Ori. Plaintiffs 1 & 2)

             Vs.

     Mr. Balbhim Bhaguji Thombare                   ....     Respondent
                                                           (Ori. Defendant)


     Mr. Dheeraj Patil i/by Mr. Pavan S. Patil for Petitioners.


                                         Coram : NITIN W. SAMBRE, J.

Date : 18TH FEBRUARY, 2021 P.C.:

1. This petition is filed by the decree-holder. The trial Court

has passed a decree in Regular Civil Suit No.9 of 2017 thereby directing

the Respondent to handover possession of encroached area of land Gat

No. 206, to the extent of 5.70 R.

2. The application, Exhibit 8 came to be moved in a Civil

Appeal No. 144 of 2018, wherein the Respondent questioned the

decree. The said application, Exhibit 8 came to be allowed thereby

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staying the execution of judgment and decree dated 13 th April 2018 in

Regular Civil Suit No. 9 of 2017. The application, Exhibit 17 was

moved by the Petitioner decree-holder for permission to lead evidence,

which came to be rejected, as such the common order passed below

Exhibits 8 and 17, by the appellate Court on 2nd November, 2018 is

questioning.

3. The submissions are, the Respondent has failed to appear in

the suit proceedings, as no Written Statement came to be filed or any

evidence is adduced and that being so, the lower appellate Court ought

not to have been granted stay in favour of the Respondent. Further

contention is, without any sufficient cause, an application Exhibit 17 is

rejected.

4 I have considered submissions.

5. The decree is for removal of encroachment and for

possession. In that view of the matter, the order of grant of stay to the

execution of the decree dated 2 nd November, 2018 does not call for any

interference.

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6. In that view of the matter, the petition is dismissed.

7. However, the hearing in Regular Civil Appeal No. 144 of

2018 pending on the file of District Judge, Baramati is expedited. Let

the appeal be decided within a period of nine months from today.

( NITIN W. SAMBRE, J.)