Sadashiv Maruti Shinde vs Smt. Rajubai Somnath Shinde And Ors
2024 Latest Caselaw 24218 Bom

Bombay High Court

Sadashiv Maruti Shinde vs Smt. Rajubai Somnath Shinde And Ors on 16 August, 2024

                                                             908-SA-448-2024.docx

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai                        CIVIL APPELLATE JURISDICTION
                               SECOND APPEAL NO. 448 OF 2024
                                            WITH
                            INTERIM APPLICATION NO. 9942 OF 2024

           Sadashiv Maruti Shinde                                        ... Appellant
                  Vs.
           Smt. Rajubai Somnath Shinde and Others                        ... Respondents

           Mr. Sujeet Bugade for the Appellant.

                                           CORAM : GAURI GODSE, J.

                                           DATE :    16th AUGUST 2024
           ORDER :

1. Heard learned counsel for the appellant. The Second Appeal

raises following substantial questions of law :

(i) Whether in view of the observations made by the First

Appellate Court in paragraphs 24 and 25 of the impugned

judgment, it was necessary for the First Appellate Court to

exercise powers under Order 41 Rule 33 read with Rule 23A and

25 of the Code of Civil Procedure, 1908 ("CPC") and remand the

matter to the trial court and grant an opportunity to defendant no.

2 to examine the attesting witness as prayed in the application at

Exhibit 149 ?

908-SA-448-2024.docx

(ii) Whether in the absence of any cross objections filed by

defendant no.2 the First Appellate Court by exercising powers

under Order 41 Rule 33 of CPC could have set aside the order

passed under Exhibit 149 and allowed the prayer of defendant

no. 2 as prayed in the application at Exhibit 149 ?

2. Issue notice for final disposal at admission stage on the

aforesaid questions of law. Notice is made returnable on 18 th October

2024.

3. Office is directed to issue notice alongwith copy of this order. In

addition to court notice notice, learned Advocate for the appellant shall

serve the respondents by private notice alongwith copy of this order

and file service affidavit before the next date.

Civil Application No. 9942 of 2024

4. Issue notice to respondent returnable on 18 th October 2024. In

addition to court notice learned counsel for the applicant to serve the

respondent by private service and file service affidavit before the next

date.

908-SA-448-2024.docx

5. Till next date by way of ad-interim relief, only handing over of

possession shall remain stayed.

6. It is clarified that the final decree proceeding can go on as

directed in the impugned decree.

[GAURI GODSE, J.]