Madhukar S/O Gulabrao Bondse v. Madhusudan S/O Gopalrao Sapkal And Others

1 CAS1064.19

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR CIVIL APPLICATION (CAS) NO. 1064 OF 2019 IN SECOND APPEAL NO. 444 OF 2019 Madhukar s/o Gulabrao Bondse ..vs..

Madhusudan s/o Gopalrao Sapkal and ors.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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. Deshpande, Advocate for appellant.

Shri A.V.Lokhande, Advocate for respondent nos. 1 to 3. CORAM : VINAY JOSHI, J.

DATED : 17 th DECEMBER, 2019 Heard.

This application is taken out by the appellant/original plaintiff seeking stay to the execution and implementation of impugned judgment and decree dated 30.03.2019 passed in appeal bearing R.C.A. No. 319 of 2016.

Initially appellant-Madhukar s/o Gulabrao Bondse had filed Regular Civil Suit No. 812 of 2012 for declaration of ownership by way of adverse possession and for perpetual injunction. Learned Trial Court on assessment of evidence has decreed the suit.

Being aggrieved, original defendant had filed first appeal bearing R.C.A. No. 319 of 2016 which came to be allowed in term declaratory decree as well as order of

2 CAS1064.19 injunction was set aside. In the wake of such position, the appellants' contentions is that, the respondent is executing the decree is unconcionable. Unless there is an order of Court, in favour of party execution petition would not lie. Learned Counsel for the respondent though admits that they filed execution but, unable to say as to what order of Court is sought to be executed. In fact, after disposal of the first appeal no executable order is survived, and in the circumstance, in any case, respondent against whom there is no existing order of Court cannot execute anything which is not in their favor.

In the circumstance, this stay application is misconceived, hence, disposed of.

SECOND APPEAL NO. 444 OF 2019 By consent the matter is fixed for final hearing at the stage of admission. Put up on 16.01.2020. JUDGE Trupti