Shivraj S/O Gulabrao Palaspagar vs Wasudev Tukaramji Mohod And ...
2022 Latest Caselaw 7937 Bom

                                                          1                            66.WP.4602-2022.odt




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

                            WRIT PETITION NO. 4602 OF 2022
                             ( Shivraj S/o Gulabrao Palaspagar
                                            Vs.
                            Wasudev Tukaramji Mohod & Anr. )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. C.A. Babrekar, Advocate for the Petitioner.



                                  CORAM:         AVINASH G. GHAROTE, J.

DATED : 17th AUGUST, 2022.

Heard Mr. Babrekar, learned counsel for the petitioner.

2. The petition questions the order dated 28.04.2022 passed by the learned executing Court rejecting the application for stay under Order XLI Rule 5 of the Code of Civil Procedure seeking stay of the order dated 18.02.2022 passed by the learned executing Court.

3. Mr. Babrekar, learned counsel for the petitioner submits, that on the strength of an agreement dated 24.07.1997, which was executed by the owner of the property agreeing to sell the property to him, the petitioner was put in possession. It is however material to note, that the agreement dated 24.07.1997, a copy of which has been placed on record by the pursis dated 17.08.2022, does not contain a clause regarding delivery 2 66.WP.4602-2022.odt

of possession of the subject property. Admittedly, the property in question was in possession of one Kavita Gulabrao Palaspagar who was the tenant of the respondents, against whom a decree of eviction was passed which is being sought to be executed. There is nothing on record to indicate the manner in which the present petitioner claims to have acquired possession and moreso when the decree passed in RCA No. 3/2005 dated 22.06.2009 against Kavita Gulabrao Palaspagar, was put to execution in RD No. 1/2015, seeking possession from her. Reliance is placed upon the judgment in RCS No. 43/2005 dated 10.01.2008 is of no assistance for the reason that even as per Mr. Babrekar, learned counsel for the petitioner, there is no finding rendered therein, that the present petitioner is in possession of the property in question. That being the position, I do not think it appropriate the decree passed in RCA No. 3/2005, to be interdicted in any manner as the same is required to be executed, and therefore, I do not find any reason to interfere in the impugned order. The petition is therefore rejected. No costs.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:18.08.2022 19:08