Rajkumar Shivraj Mathpati ... vs Satyabhama Chandrakant Tandale ...
2022 Latest Caselaw 1585 Bom

                                  .. 1 ..                          CA.4702.2022

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                  CIVIL APPLICATION (ST.) NO.4702 OF 2022
                                    IN
                     CIVIL APPLICATION NO.140 OF 2022
                                    IN
                       SECOND APPEAL NO.73 OF 2022

Rajkumar s/o. Shivraj Mathpati (Died)
Thr. LRs Jaidevi Rajkumar Mathpati and Others                    .. Applicants

         Versus

Satyabhama Chandrakant Tandale (Died)
Thr. LRs Sunil Chandrakant Tandale and Others         .. Respondents
                                  ...
           Mr. Subodh P. Shah, Advocate for the applicants.
  Mr. P.R. Tandale, Advocate for Respondent Nos.1-A to 1-D & 2-A.
                                 ....

                                     CORAM :     MANGESH S. PATIL, J.

                                     DATE :    16-02-2022

PER COURT :

.                 Not on Board. Taken on Board on the request made on

behalf of the original appellants seeking stay to the execution and the

operation of the order dated 14-01-2022, whereby the Second Appeal

was dismissed on merits.

2. By way of this application, it is now being pointed out by

the learned advocate Mr. Shah for the appellants / applicants that

since they were not the parties to the execution proceeding they did

not get the knowledge, but now they have learnt that the executing

.. 2 .. CA.4702.2022

court has issued a possession warrant. The appellants are in actual

possession of the property in dispute, which is a residential premises.

Still there is some time left to challenge the order before the supreme

court and the request is made to stay the execution for a reasonable

time.

3. Learned advocate Mr. Tandale for the respondents

opposes the application. He would submit that enough time has

already been lost and decree holders are being deprived of the fruits

of the decree. The Second Appeal itself was not maintainable and

this court had rightly dismissed it on merits. In spite of being aware

about the pendency of the execution proceeding, the operation of

which was stayed initially by the order dated 06-01-2022 during

pendency of the Second Appeal, it was never sought to be extended

beyond the date of decision of the Second Appeal. The request is

being made belatedly. He, therefore, requests to reject the

application.

4. Obviously, one need not go into the merits or otherwise

of the Second Appeal. The fact remains that the Second Appeal was

decided on 14-01-2022. Though for some time during pendency of

the Second Appeal there was stay to the execution of the decree

.. 3 .. CA.4702.2022

under challenge till decision of the Second Appeal, no request was

ever made to extend it beyond the date of the decision even when the

judgment was pronounced.

5. It is thus apparent that a fresh order in a disposed of

matter is now being solicited in the form of stay to the execution to

which the appellants are not the parties.

6. In my considered view, bearing in mind the history in

filing of the second appeal as narrated in the order dated 14-01-2022,

when already the appellants have lost time of more than four weeks

since pronouncement of the judgment, no fresh order granting stay

can be passed.

7. Civil Application (St.) No.4702 of 2022 is liable to be

rejected and is accordingly rejected.

( MANGESH S. PATIL ) JUDGE ...

Gajanan