Pushpa Balwant Jadhav v. Jaitunbi Gulabbhai Shikalgar Since Decd. And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

rrpillai CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 17144 OF 2024 Pushpa Balwant Jadhav ...

Petitioner Vs.

Jaitunbi Gulabbhai Shikalgar ...

Respondents since deceased and Others Ms. Gunjan P. Shah for the Petitioner.

Mr. Dilip Bodake a/w. Ms. Shraddha Pawar for Respondent Nos. 2A to 2C, 3A1 to 3A4, 3C1 to 3C3, 3B1, 4A to 4F, 7, 8, 9,10, 11 and 12.

CORAM : GAURI GODSE, J.

DATE :

6th AUGUST 2025 ORDER :

1.

This petition is filed by the original defendant no. 2. By the impugned order defendant nos. 2's application under Section 47 of the Code of Civil Procedure, 1908 in the execution proceedings is rejected.

2.

Learned counsel for the petitioner submits that the decree under execution is dated 2nd November 1996. She points out the judgment on page 80 of this petition. She submits that in clause 4 of the operative decree the sale by RAJESHWARI RAMESH PILLAI Date:

2025.08.07 02:53:07 +0200 RAJESHWARI RAMESH PILLAI 1/3

deed executed by defendant no. 1 in favour of defendant nos. 3 and 4 are declared that it would not be binding upon plaintiff nos. 2 and 3. She points out that there is no declaration granted regarding the sale deed in favour of defendant no. 2. She further points out that defendant no. 1 is granted one-fourth share in the suit property. She further submits that the property subject matter of sale deed in her favour was not the subject matter of the suit, however by order dated 18th July 2006 the suit property subject matter of the sale deed in favour of the petitioner was included in the description of the suit property. The property subject matter of the petitioner's sale deed is CTS No. 1900/2. 3.

In view of these facts, the learned counsel for the petitioner submits that even if the partition decree has attained finality, the petitioner would be entitled to protect the property which is the subject matter of the sale in favour of the petitioner as there was no declaration at the time of passing partition decree. She therefore submits that the onefourth share granted to defendant no. 1 can be adjusted towards the area of the sale deed of the petitioner. 4.

Learned counsel for the petitioner on instructions 2/3

submits that though there was no declaration as regards property subject matter of the petitioner's sale deed, only to put an end to the entire dispute, the petitioner is ready to amicably settle the dispute by making payment towards defendant no.1's one-fourth share which is granted by the decree in execution.

5.

Learned counsel appearing for the heirs and legal representatives of the original plaintiff and heirs of defendant no. 1 seeks time to take instructions as to whether the original plaintiff and defendant no. 1 would be agreeable to put an end to the entire dispute by amicably resolving the dispute with the petitioner.

6.

List the petition on 19th August 2025. To be listed under the caption for "Directions".

7.

Till further orders are passed in this petition the possession warrant, if any, issued in respect of the petitioner's property shall not be executed.

[GAURI GODSE, J.] 3/3