Bombay High Court
Sudha Wd/O Ashok Wasnik vs Kalpana Wd/O Janardhan Wasnik on 27 August, 2024
Author: M.W. Chandwani
Bench: M. W. Chandwani
1 1 sa376.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAS) NO.711 OF 2024 IN
SECOND APPEAL NO.376 OF 2017
Sudha Wd/o Ashok Wasnik Vs. Kalpana Wd/o Janardhan Wasnik
__________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Shri M.V. Rai, Advocate for appellant.
Shri S.R. Narnaware, Advocate for respondent.
CORAM : M.W. CHANDWANI, J.
DATE : 27.08.2024.
By this application, the appellant is praying for stay to
the execution of judgment and order dated 17.03.2016
passed by the learned District Judge-11, Nagpur in Regular
Civil Appeal no.257/2014 and the judgment and decree
dated 03.05.2014 passed by the learned 19th Joint Civil
Judge Junior Division, Nagpur in Regular Civil Suit
no.1731/2012, whereby the appellant has been directed to
hand over the possession of the suit property to the
respondent.
2. This Court, while issuing notice for admission, framed
two substantial questions of law vide order dated 12.03.2018
and directed the parties to maintain status quo. It is matter
of record that alongwith Second Appeal an application for
stay was filed however, due to non-prosecution by the
appellant, said application came to be dismissed in default
vide order dated 22.02.2019. Thereafter, second application
2 1 sa376.17.odt
for stay came to be filed on 05.02.2022, however, on
13.03.2023, under misconception the counsel for the
appellant informed the Court that decree has been executed,
said application came to be disposed of.
3. Now, by this application, it is contended that the said
statement made by the learned counsel for the was under
misconception of fact. According to the appellant, decree has
not been executed till date. This position has not been
disputed by the respondent.
4. The learned counsel for the respondent vehemently
objected the application mainly on the ground that the
application made by the appellant came to be dismissed on
22.02.2019 therefore, other application filed by the
appellant will be hit by the principle of res judicata and the
both Court below are against the appellant. It is also
submitted that second application also came to be disposed
of. Therefore, subsequent application for stay is not
maintainable.
5. It is settled position of law that principle of res
judicata will be applicable when the matter has been heard
on merits. It is a matter of record that first stay application
was dismissed in default for non-prosecution. Second
application came to be disposed of on the incorrect fact that
decree has been executed, therefore, I do not find substance
in the argument of the learned counsel for the respondent
that present application for stay is not maintainable.
3 1 sa376.17.odt
6. Since, the decree is for possession and this Court has
already admitted the Second Appeal after framing
substantial questions of law and had protected the appellant,
a case is made out for stay. Hence, pending second appeal,
there shall be stay to the execution and implementation of
judgment and decree dated 17.03.2016 passed by the
learned District Judge-11, Nagpur in Regular Civil Appeal
no.257/2014 and also the judgment and decree dated
03.05.2014 passed by the learned 19th Joint Civil Judge
Junior Division, Nagpur in Regular Civil Suit no.1731/2012.
7. The application is disposed of.
8. List the second appeal for final hearing in the week
commencing from 23rd September, 2024.
JUDGE
Wagh
