Dhondu S/O Vitthal Kachkure And ... vs Rajabhau S/O Pundlik Chopde ...
2023 Latest Caselaw 4045 Bom

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

                                  WRIT PETITION NO.2621/2023

                     Dhondu s/o Vitthal Kachkure and others
                                       Vs.
                 Rajabhau s/o Pundlik Chopde (Dead) through LRs

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

                                  Mr. S.N. Bhattad, Advocate for petitioners


                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 21st APRIL, 2023

Heard learned counsel for the petitioners.

2. It is contended that though the right of way claimed in Regular Civil Suit No.86/2007 was granted as modified in appeal, however, on account of encroachment by a third party as is reflected from the measurement map at page 77, the same cannot be made available to the Decree holder. It is submitted, that without considering this position, by the impugned order dated 22/02/2023, the applications at Exhs.144 and 148 are rejected. It is also pointed out that the application at Exh.145, which is by the decree holder for warrant of possession for grant of the way has also been rejected on the ground that there is an encroachment of the third person. It is submitted,

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that warrant of possession was issued on 19/04/2023. In such circumstances, when the right of way is held to be encroached by a third person, the question of execution of the warrant of possession for clearance of right of way against the judgment debtors / petitioners would not arise, considering which, issue notice to the respondents for final disposal, returnable on 2nd May, 2023.

3. The petitioner shall serve the respondents by all modes permissible in law, including Hamdast.

4. Till the returnable date, the further proceedings in R.D. No.10/2013, before the executing Court shall be stayed.

5. Steno copy be supplied to the parties to act upon.

JUDGE MP Deshpande