Bombay High CourtCAS/700/2018admittedallwdgrantedrule absolute

Ravindra S/O Ramesh Hattimare v. Anant S/O Yadavrao Patharikar And Another

2018-10-08Hon'Ble Shri Justice A.S. Chandurkar2 pages

SA278-18 FARAD CONTINUATION SHEET No.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 278/2018 (RAMESH WASUDEO HATTIMARE (DEAD) THR. LR's RAJESH RAMESH HATTIMARE & OTHERS VERSUS ANANT YADORAO PATHARIKAR & ANOTHER) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.S. Kilor, counsel for the appellants.

Shri K.B. Zinzarde, counsel for the respondents. CORAM : A.S. CHANDURKAR, J.

DATE : OCTOBER 08 , 2018.

Heard. ADMIT on the substantial question of law as framed on 19.06.2018.

Shri K.B. Zinzarde, learned counsel waives notice of hearing on behalf of the respondents.

Call for Record & Proceedings.

C.A.S. NO. 700/2018.

By this application, it is prayed that the execution of the decree as passed by the appellate Court be stayed during pendency of the appeal. By that decree, the defendants have been directed to remove the barbed wire fencing made on the common boundary of the suit fields.

The application is opposed by the learned counsel for the non-applicants on the ground that the appellate Court has decreed the suit after considering the entire evidence on record. Prima-facie, the observations made by the trial Court in paragraph 16 of its judgment indicate that the fencing has been erected by the defendants on their side of the field which fact was admitted by the plaintiffs in the cross-examination. The aforesaid appreciation of evidence by

SA278-18 the trial Court has not been taken into consideration by the appellate Court while reversing the said decree. Hence, during pendency of the appeal, the execution of the decree as passed shall remain stayed.

The applicants shall however not further change the nature of the construction already erected.

Civil application is allowed in aforesaid terms and disposed of.

JUDGE APTE