Bombay High Court
Shri Ramdas S/O Kawdu Meshram vs Shri Govinda S/O Ramchandra ... on 30 March, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CIVIL APPLICATION [CAC] NO. 09 OF 2021
IN
CIVIL APPLICATION [CAC] NO. 06 OF 2021
IN
CIVIL REVISION APPLICATION ST. NO. 2391 OF 2021
RAMDAS S/o KAWDU MESHRAM
VERSUS
GOVINDA S/o RAMCHANDRA SHAMKUWAR
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. P. V. Thakre, Advocate for the applicant.
CORAM : V. M. DESHPANDE, J.
DATE : MARCH 30, 2021.
1. Civil Application (CAC) No. 09/2021 is an
application for grant of stay to the execution proceeding.
Civil Application (CAC) No. 06/2021 is an application for
condonation of delay in filing Civil Revision Application St.
No. 2391/2021.
2. Civil Revision Application is filed before this Court
challenging the judgment and decree passed by the
learned Civil Judge, Junior Division, Umred in Regular
Civil Suit No. 41 of 2014. Since, there was delay in filing
the revision application, an application for condonation of
delay was filed and on the said, this Court has issued
notices on 18/03/2021. Along with the application for
condonation of delay, there was no application for stay to
the execution proceeding.
3. I have heard Mr. P. V. Thakare, learned counsel for
the applicant. He submits that the applicant, who is the
original defendant, suffers a decree of possession in
Regular Civil Suit No. 41/2014. Against that, he preferred
an appeal under Section 96 of the Code of Civil
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Procedure vide Regular Civil Appeal No. 652 of 2017,
however on 02.11.2019, the said appeal was dismissed
by the learned Appellate Court holding that the appeal is
not maintainable since the suit filed by the plaintiff was
under Section 6 of the Specific Relief Act, 1963. He
submits that thereafter he preferred Second Appeal i.e.
Second Appeal No. 78 of 2020 and on 26.02.2020, this
Court (Coram : Anil S. Kilor J.) permitted the applicant to
withdraw said Second Appeal to take appropriate remedy.
He submits that therefore, this revision is filed, but since it
is barred by limitation, an application of condonation of
delay is filed.
4. Mr. Thakare, learned counsel for the applicant, in
my view, has rightly relied upon the decision of this Court
in case of Shaikh Ibrahim Janmohammad .vs.
Tekchand alias Ravindra Fakirchand Rathod, reported
in 1988 (2) Bom.C.R. 436, by which it is clear that the
application for stay can be considered pending the
application for condonation of delay.
5. I have perused the judgment passed by learned
trial Court. The judgment of the trial Court is not tested
on its own merit by the learned Appellate Court since the
appeal was dismissed on the ground of maintainability.
The decree is of possession. Thus, in my view, a chance
is required to be given to the applicant to prove his case.
In that view of the matter, I pass the following order :
ORDER
1. Issue notice on Civil Application (CAC) No. 09
of 2021 to the non-applicant, returnable after
four weeks.
2. In the meanwhile, there shall be stay to the
execution proceeding i.e. Regular Darkhast
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No. 04 of 2018, pending on the file of learned
Civil Judge, Junior Division, Umred.
3. Put up this matter for further consideration
after four weeks.
4. Hamdast granted.
JUDGE
Diwale
