Disposed

Sri. Bhalchandra Chandar Kambri v. Shri. Kashinath Namdeo Solanke and Ors.

Bombay HC10 Aug 2021WP/10421/2013

Case brief

AI extract

What is this about?

The High Court disposed of the writ petition challenging a trial court's order denying a stay of execution. The court held the petitioner was at liberty to file a fresh application due to changed circumstances (construction on property) and directed the trial court to dispose of a pending miscellaneous application within six months.

What did the court decide?

Writ petition disposed with no order as to costs; petitioner at liberty to file fresh application; trial court directed to dispose pending miscellaneous application within six months.

Sri. Bhalchandra Chandar Kambri Vs Shri… — Civil Procedure and Limitation | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 10421 OF 2013

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Shri Bhalchandra Chandar Kambri.... Petitioner
vs.
Shri Kashinath Namdeo Solanke & Ors..... Respondents

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Ms. Gouri Godse, for the Petitioner.
Mr. Pradip R. Kadam, for Respondent Nos.2 to 8.

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 -------------------
CORAM : MADHAV J. JAMDAR, J.
DATE : 10th AUGUST, 2021

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P.C. :

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. Heard Ms. Gouri Godse, learned Advocate for the petitioner

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and Mr. Pradip Kadam, learned Advocate for respondent Nos.2 to 8.

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2. The petitioner who is original defendant No.2 has challenged

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the Order dated 20th August 2013 passed by the learned 4th Joint Civil
Judge, Junior Division, Ulhasnagar below Exh.5 in Misc. Application
No.7 of 2013.

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3. Ms. Gouri Godse, learned Advocate for the petitioner pointed
out para No.12 of the impugned order. In said paragraph submission
of the respondent Nos.1 to 8 was recorded to the effect that they

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have not filed the execution petition nor intended to file the same for

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execution of the decree. She submitted that on the basis of the said
submission, the application at Exh.5 filed in Misc. Application No.7 of
2013 was rejected without considering the merits of the case.

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4. Mr. Pradip Kadam, learned Advocate appearing for respondent

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Nos.2 to 8 submitted that as per his instructions, the property is
developed and buildings are constructed.

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5. Perusal of the record shows that impugned order rejecting
Exh.5 application in Misc. Application No.7 of 2013 was passed on
20th August 2013 and the present petition has been filed on 18th
October 2013. In the writ petition, notice was issued by order dated
8th January 2014. However, interim relief was not granted.

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6. The petitioner by filing application at Exh.5 in Misc.
Application No.7 of 2013 sought relief to the effect that till the
hearing and final disposal of the proceedings the decree passed in
Regular Civil Suit No.305 of 2001 be stayed. The learned trial Court
while rejecting the application at Exh.5 recorded the statement of the
respondents that they do not intend to file execution proceeding.
Thus, there is no substance in the contention of the petitioner that
without considering the merits of the case Exh.5 application is

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mp 2/3

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8 wp 10421-2013.doc

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rejected in view of the said statement recorded by the learned Trial
Court. It is clear that the interest of the petitioner was protected by
the learned trial Court.

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7. In any case, it appears that the nature of the property has
changed and buildings are constructed on the property. Therefore,
the petitioner is at liberty to file fresh application seeking appropriate
interim relief in Misc. Application No.7 of 2013 in view of changed
circumstances. If such fresh application is filed, the same be decided
in accordance with law.

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8. Misc. Application No.7 of 2013 was filed on 11th January 2013
seeking to set aside ex-parte Judgment and Decree dated 17th
December 2012 passed in Regular Civil Suit No.305 of 2011. The said
Misc. Application is pending for last eight years. Therefore, the
concerned learned Civil Judge, Junior Division, Ulhasnagar is
requested to dispose of Misc. Application No.7 of 2013 within a
period of six months from the date of receipt of copy of this order.

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9. All the contentions of the parties are kept open.

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10. The Writ Petition is disposed of with no order as to costs.

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 (MADHAV J. JAMDAR, J.)

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Sri. Bhalchandra Chandar Kambri v. Shri. Kashinath Namdeo Solanke and Ors.

Case brief

What is this about?

What did the court decide?

Sri. Bhalchandra Chandar Kambri v. Shri. Kashinath Namdeo Solanke and Ors.

Case brief

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What did the court decide?

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