Kalidas Narsingrao Biradar vs Amar Vitthalrao Biradar And ...
2023 Latest Caselaw 10748 Bom

                                     1                           33-WP-12969-23.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                        WRIT PETITION NO.12969 OF 2023

                      KALIDAS NARSINGRAO BIRADAR
                                   VERSUS
                 AMAR VITTHALRAO BIRADAR AND ANOTHER
                                       ...
                  Advocate for Petitioner : Mr. T. M. Venjane
                                       ...


                                         CORAM :        S. G. MEHARE, J.

                                         DATE       : 17-10-2023

PER COURT :-

1. Heard the learned counsel for the petitioner.

2. The facts of the case were that respondent No.1 had filed a

suit for cancellation of sale deed and recovery of possession of the

suit land. The suit was decreed. The present petitioner had

impugned said Judgment and decree along with application for

condonation of delay. The learned first Appellate Court in

application for condonation of delay granted status-quo subject to

depositing entire amount in question. The petitioner had

accordingly deposited the said amount.

3. The delay application was heard. It was allowed subject to

costs of Rs.25,000/- as a condition precedent. The cost was to be

deposited within two weeks from the date of order dated

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29.07.2019. The petitioner failed to deposit the amount as per the

order. Then by an application dated 01.07.2022 he requested the

Court to condone the delay for depositing the costs imposed for

the condonation of delay. The Court issued a notice to the

respondent No.1. That application is pending.

4. Mean time, respondent No.1 who was the plaintiff opened

the execution proceeding. He had filed an application for re-

issuing the possession warrant of the suit property. The petitioner

did not file say to that application. Hence, the executing court

proceeded ahead without say of the present petitioner and re-

issued possession warrant of the suit property. Against that order,

the petitioner is before the Court.

5. The application filed by the petitioner below Exhibit-65 for

calling back the order of issuing warrant was also rejected. Hence,

he impugned the said order.

6. The learned counsel for the petitioner would submit that the

executing Court had no power to issue the possession warrant as

the trial Court did not pass a decree for possession. The trial Court

has ordered that the sale deed in question was cancelled. The

plaintiff/present respondent No.1 shall recover the possession of

the suit land by following due procedure of law.

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7. The learned counsel for the petitioner has interpreted the

operative part of the Judgment and decree that for recovery of

possession, the respondent No.1/original plaintiff has to file a

separate suit for recovery of the possession.

8. The question is, what is the effect of the status quo order

granted by the learned Ad hoc District Judge, Nilanga dated

26.07.2018 due to failure of the petitioner to deposit cost of

Rs.25,000/- This question goes to the root of the re-issuance of

the possession warrant. Therefore, there appears a good ground

to argue in the petition. Hence, issue notice before admission to

the respondents, returnable on 03.11.2023.

9. Mean time, the order of re-issue of possession warrant is

stayed.

10. The petitioner shall promptly serve the respondents before

the next date, by way of private service.

( S. G. MEHARE ) JUDGE

rrd