Bombay High Court
Pushpa Sayaji Gaikwad vs Nirmala Pandurang Gaikwad on 18 August, 2025
2025:BHC-AS:36067
39-WP(ST)-27899-2025.doc
MJ Jadhav IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 27899 OF 2025
Pushpa Sayaji Gaikwad ... Petitioner
Vs.
Nirmala Pandurang Gaikwad ... Respondent
Mr. S.C. Wakankar a/w Aishwarya Bapat for the Petitioner.
Digitally
signed by
MANGALTAI
MANGALTAI JAYWANT
JAYWANT JADHAV
JADHAV Date:
2025.08.22
10:58:07
+0530
CORAM : GAURI GODSE, J.
DATED : 18th AUGUST 2025
ORDER:
1. This petition is filed by the original defendant-judgment
debtor, to challenge dismissal of an application seeking stay of the
execution of the decree during the pendency of the application filed
by the petitioner under Order XXI Rule 97 of the Code of Civil
Procedure,1908 ('CPC').
2. The respondent is the original plaintiff who had filed a suit for
possession after removal of encroachment against the defendant in
respect of the land bearing Gat No.49. The plaintiff had filed a suit
on the ground that she is owner of the suit property. The suit is
decreed on 10th June 2014. The petitioner (defendant) had filed a
first appeal alongwith an application for condonation of delay in filing
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the first appeal. The application for condonation of delay was
dismissed on 17th October 2016. Hence, the petitioner had filed
Second Appeal No.75 of 2017 in this Court which was dismissed on
29th September 2021. The decree under execution thus attained
finality. Immediately after the dismissal of the second appeal, the
petitioner filed an application under Order XXI Rule 97 of the CPC.
The application was rejected on 21st March 2025. Hence, the
petitioner had filed Regular Civil Appeal No.131 of 2025. Pending
this appeal the petitioner had filed an application for stay to the
execution of the decree. This application for stay is rejected on 31 st
July 2025 which is impugned in this petition.
3. Learned counsel for the petitioner submits that the suit is filed
for possession of land after removal of encroachment in respect of
an agricultural land. However, the petitioner claims rights in respect
of the land as well as structures standing thereon. He submits that
the structures on the suit land are standing since 1991 and the
structures and the land beneath it, were part of the partnership firm
between the parties. When the partnership firm was dissolved on
1st January 1993, the structures concerning the partnership firm i.e.,
the poultry farm was given to the share of the petitioner. He
therefore submits that so far as the structures are concerned, there
is no decree for removal of the structures from the suit land and
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thus, the decree would not be executable in respect of the
structures of Gat No.49. To support his submissions, learned
counsel for the petitioner relies upon the document of dissolution of
partnership. He points out clause no.6 of the dissolution deed to
support his submissions that the structures standing on the suit land
which is under execution was given to the share of the petitioner
alongwith the land beneath the structure. He thus submits that the
decree dated 10th June 2014 passed in respect of Gat No.49 for
removal of encroachment would not be executable in respect of the
structures standing thereon. He submits that the executing Court
failed to consider these objections and rejected the application
under Order XXI Rule 97. He submits that since the substantive
appeal is pending in the district Court, the decree under execution
needs to be stayed during the pendency of the first appeal.
4. I have perused the papers of the petition. The decree under
execution directs the defendant (petitioner) to hand over peaceful
and vacant possession of the encroached area of 22R from Gat
No.49. The decree is passed accepting the plaintiff's ownership over
the said land. The decree has attained finality as the second appeal
is dismissed on 29th September 2021.
5. Immediately after dismissal of the second appeal, the
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petitioner filed the application under Order XXI Rule 97. The
petitioner claims right in respect of the land on the ground that the
structures standing thereon originally belong to the partnership firm
and granted to the petitioner at the time of dissolution of partnership
firm. However, there is nothing on record to indicate that the suit
land was owned by the partnership firm. The dissolution deed does
not refer to land Gat No.49 in respect of which the decree is passed.
Thus, based on a vague averment in the partnership dissolution
deed which does not refer to the suit property, the objections raised
by the petitioner under Order XXI Rule 97 were rightly rejected by
the executing Court. The plaintiff's ownership on Gat No.49 is
accepted by the trial Court while passing the decree and the decree
has attained finality.
6. It is a well-settled legal principle that the executing Court
cannot go beyond the decree. The operating part of the decree
directs the defendant to hand over vacant and peaceful possession.
Thus, in the absence of the petitioner's rights in respect of the suit
property the petitioner is not likely to succeed in his pending appeal.
Thus, considering the nature of the decree under execution of the
year 2014, the appellate court has rightly refused to grant stay to the
execution of the decree. This attempt on the part of the petitioner is
to defeat the execution of the decree in favour fo the respondent
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which has attained finality. In the absence of any prima facie case in
favour of the petitioner indicating any right in respect of the suit
property, the first appellate court has rightly refused to grant stay to
the execution of the decree. Hence, I do not see any reason to
interfere with the impugned order in the exercise of the discretionary
jurisdiction under Article 227 of the Constitution of India.
7. The Writ Petition is, therefore, dismissed.
8. Needless to clarify that the observations in this order are
restricted to the decision of the application for stay. Hence, the
appeal shall be decided on its own merits in accordance with law.
(GAURI GODSE, J.)
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