Bombay High Court
Sau. Nanda W/O Subhash Limje And 2 ... vs Sau. Pushpatai W/O Santoba Sorte ... on 28 September, 2021
Bench: S. M. Modak
sa.383.19 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Application No.620 of 2021
in
Second Appeal No.383 of 2019
Sau. Nanda w/o Subhash Limje & others
vs.
Vinod s/o Santoba Sorte
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri D.L. Dharmadhikari & Shri Ashwin Deshpande, Advocates for the
Applicants/Appellants.
CORAM : S.M. MODAK, J.
DATE : 28th SEPTEMBER, 2021.
Heard learned Advocate Shri Dharmadhikari assisted by
learned Advocate Shri Deshpande for the applicants/appellants.
02] This Court has already admitted this appeal vide order
dated 18/12/2019. Three substantial questions of law were also
framed. Along with the appeal, an application for stay was not
filed depending upon the situation prevailing at that time. Both
the defendants are the respondents in this appeal. Respondent
No.1-Pushpabai died during pendency of this appeal. So, Vinod is
the only surviving respondent.
03] A copy of proposed mutation prepared by the revenue
authorities and a copy of appeal preferred by Harshal, minor son
through guardian sole respondent-Vinod before the Sub- Divisional
Officer, are filed along with the present civil application. From
their perusal, it reveals that deceased-Pushpabai has also
executed a will and intimation is given to the revenue authorities
that the suit properties be mutated in the name of the
beneficiaries of the will executed by deceased- Pushpabai. Vide
sa.383.19 2/3
order dated 06/08/2019, the revenue authorities were pleased to
refuse the mutation for the reason that the present appeal is
pending.
04] There is a contention that if mutation is effected, the
names of alleged beneficiaries of the will of deceased-Pushpabai
will be brought on record and even there is likelihood that they
will sell the suit properties. My attention is brought to the
averments made in Ground No. (C) of the memo of appeal filed
before the Sub Divisional Officer. It mentions that this Court has
not granted stay in the present appeal and as such they have
made grievance that the Tahsildar has committed a wrong in not
mutating the names on the basis of will of Pushpabai.
05] My attention is also brought to the order dated
03/12/2019 passed by this Court. Learned Advocate Shri K.S.
Narwade appearing for the respondent has expressed difficulty for
not getting the instructions from the respondent. Then on
18/12/2019, while admitting the appeal, this Court has issued a
fresh notice on merits to the respondent. Yet, the service report is
awaited.
06] However, in view of the fact that the sole respondent-
Vinod is trying to pursue with the revenue authorities to mutate
the suit properties in the name of the beneficiaries of the will, this
Court is required to consider the prayer for stay. Hence, the
prayer clause of stay needs to be considered.
07] It is true that there is no executable decree, because
the suit is not decreed. The question of granting of stay, therefore,
will not arise. However, there is a reason to grant stay to the
effect and observations made in the judgment passed by the
Courts below. Hence, the following directions :
sa.383.19 3/3
i. The effect and operation of the judgment passed by the
Courts below are stayed till the hearing of the stay
application.
ii. As the notice of the appeal on merits is not served, the
appellants are directed to serve the respondent by
private service in addition to usual mode of service.
iii. Authenticated copy of this order be supplied to the
learned Advocate for the appellants.
iv. The matter be kept after six weeks.
JUDGE
*sandesh
