Bombay High Court
Vishnu Bapu Pachangane And Jadhav ... vs Nivrutti Bapu Pachangane And Jadhav ... on 31 July, 2025
2025:BHC-AS:32464
901-WP.11080.2018.doc
Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11080 OF 2018
JAYANT
VISHWANATH
SALUNKE
Digitally signed by
JAYANT
VISHWANATH Vishnu Bapu Pachangane & Jadhav, }
SALUNKE
Date: 2025.07.31
18:46:42 +0530
since deceased, through LRs. (1A) }
Dattatray Vishnu Pachangane & Ors. } Petitioners
versus
Nivruti Bapu Pachangane & Jadhav, }
since deceased, through LRs. (1A) }
Tarubai Nivruti Pachangane & Ors. } Respondents
Mr. Prafulla B. Shah with Ms. Gunjan P.
Shah i/b. Mr. Kayval Shah for petitioners.
Mr. Saurabh Bachhawat with
Ms.Dhanshree Kulkarni i/b. Mr. Abhishek
Adke for respondents 1A & 1B.
CORAM: ALOK ARADHE, CJ.
DATE: JULY 31, 2025
ORAL ORDER:
1. In this petition under Article 227 of the Constitution of
India, the petitioners have assailed the validity of the order
dated 22nd February 2017 passed by the District Judge, Satara
in Miscellaneous Civil Appeal No. 124 of 2015, by which, the
objection preferred by the petitioner to the execution petition
filed by respondents has been rejected.
2. Facts giving rise to filing of the writ petition, briefly stated,
are that the original plaintiffs filed a suit being RCS No. 61 of
1973 seeking relief of partition of joint family property. The
aforesaid civil suit was decreed vide judgment and decree dated
901-WP.11080.2018.doc
11th July 1979. The Trial Court held that the plaintiffs are
entitled to 50% of the joint family property, whereas, the
defendant no. 2 was held entitled to ¼ th sare in the property.
The plaintiffs filed an execution application being Darkhast
No.75 of 1981, which was dismissed for want of prosecution on
20th February 1985. Thereafter, the present respondents,
namely legal representatives of defendant no. 2 filed application
being Darkhast No. 2 of 2010 for ¼ th share in the property. In
the aforesaid proceedings, the petitioners filed an objection. The
executing Court, by an order dated 22nd April 2015, allowed the
execution application filed by the respondents/legal
representatives of defendant no. 2 and rejected the objection
preferred by the petitioners. Being aggrieved by the aforesaid
order, the petitioners preferred an appeal. The Appellate Court,
by an order dated 22nd February 2017, has dismissed the
appeal. Hence this petition.
3. Learned counsel for the petitioners submitted that the
impugned execution application filed by the respondents was
barred by res judicata and limitation as it is filed after a period
of 30 years from the date of decree.
4. On the other hand, learned counsel for respondents
submitted that there is distinction between a preliminary decree
and a final decree, which has been noticed by Hon'ble Supreme
Court in the case of Abdul Rejak Laskar vs. Mafizur Rahman
& Ors., reported in 2024 SCC OnLine SC 3845.
5. I have considered the submissions made by both sides and
perused the record.
901-WP.11080.2018.doc
6. It is pertinent to note that the plaintiffs' execution being
Darkhast No. 75 of 1981 was dismissed for want of prosecution
on 20th February 1985. Thereafter, the legal representatives of
defendant no. 2 filed an application for execution in respect of
their ¼th share in the property. The limitation would commence
when a final decree is drawn. The Appellate Court, by assigning
cogent reasons in para 18 of its order, has rejected the objection
preferred by the petitioners. Article 136 of the Limitation Act,
1963 has no application to the facts of the case as the decree in
question is preliminary decree.
7. The impugned order passed by the Appellate Court neither
suffers from jurisdictional error nor any error apparent on the
face of the record warranting interference of this Court in
exercise of power under Article 227 of the Constitution of India.
8. In the result, the writ petition fails. It is hereby dismissed.
(CHIEF JUSTICE)
