Bombay High Court
Tanhaji Kalu Ghate Jadhav vs Tanaji Tukaram Ghate Alias Jadhav ... on 11 April, 2023
Bench: S. V. Kotwal
2023:BHC-AS:11221-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4815 OF 2023
Tanhaji Kalu Ghate Jadhav .... Petitioner
versus
Tanaji Tukaram Ghate @ Jadhav & Ors. .... Respondents
.......
• Ms. Aditi Naikare a/w Rushikesh S. Kekane, Advocate for
Petitioner.
• Mr. Vijay Killedar, Advocate for Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 11th APRIL 2023
P.C. :
1. Heard Ms. Aditi Naikare, learned counsel for the
Petitioner and Mr. Vijay Killedar, learned counsel for the
Respondent.
2. The Petitioner has challenged the order dated
23/01/2023 passed by the Joint Civil Judge, Junior Division,
Wai, below Ex.346 in Regular Darkhast No.2 of 1999. By the
impugned order learned Judge had rejected the application for
Nesarikar
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stay to the possession warrant. Learned counsel for the
Petitioner submitted that the Commissioner's report in the
second round was filed on 04/04/2022. After that, the Petitioner
had raised objection for unequal distribution which was not in
conformity with the original decree dated 30/04/1990. She
submitted that without deciding these objections, the impugned
order was passed. She relied on the provisions of Order XXVI,
Rule 14. She submitted that the Commissioner's report makes
unequal distribution to the detriment to the rights of the
Petitioner who was the Judgment Debtor.
3. Learned counsel for the Respondent No.1 who was the
decree holder supported the impugned order. However, he did
not make any submissions in respect of the objections raised by
the Petitioner. He submitted that the copy of objections was
given to him by the learned counsel for the Petitioner in the
Court today. However, there is no dispute that such objections
are already filed before the executing Court.
4. Considering this situation, it would be appropriate if
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the Executing Court is directed to consider and decide the
Petitioner's objections first and then pass appropriate order in
the Execution Proceedings in conformity with Order XXVI Rule
14. It is also important to note that the decree was passed in the
year 1990 and it was confirmed upto Hon'ble Supreme Court.
Though the decree was passed in the year 1990, till today, it
could not be executed for various reasons. Therefore, it is also
necessary to decide the Execution Proceedings at the earliest.
5. Considering this discussion, following order is passed :
ORDER
(i) The order dated 23/01/2023 passed by passed
by the Joint Civil Judge, Junior Division, Wai,
below Ex.346 in Regular Darkhast No.2 of 1999,
is set aside. The said Court is directed to decide
the objections raised by the Petitioner first and
then then pass appropriate order in the
Execution Proceedings.
(ii) All other contentions raised by both the parties
are left open.
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(iii) The objections shall be decided within a period
of four weeks from today and thereafter further
orders be passed as expeditiously as possible and
in any case within four weeks after deciding the
objections.
(iv) With these observations, the Writ Petition is
disposed of.
(SARANG V. KOTWAL, J.)
