Dismissed

Raju Mhalappa Khandekar and Anr. v. Shankar Tukaram Kokare and Ors.

Bombay HC6 Nov 2023WP/6231/2022

Case brief

AI extract

What is this about?

Petitioner challenged a stay order on a preliminary partition decree. The High Court held the preliminary decree remained valid as shares were unmodified. It allowed the stay during delay condonation proceedings, finding no jurisdictional error warranting Article 227 intervention.

What did the court decide?

Writ petition disposed of; stay on preliminary decree maintained during pendency of condonation application.

Raju Mhalappa Khandekar and Anr. Vs Shankar Tukaram Kokare and Ors. — Partition | Bombay HC (2023)

¶1

32-6231-2022.doc

¶2

Nikita

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶4

WRIT PETITION NO.6231 OF 2022

¶5

NIKITA KAILAS DARADE

¶6

Digitally signed byNIKITA KAILASDARADE Date: 2023.11.0617:59:03 +0530

¶7

Raju Mhalappa Khandekar and Anr.… Petitioners
V/s.

¶8

Shankar Tukaram Kokare and Ors.… Respondents

¶9

Mr. Samir A. Kumbhakoni for the Petitioners.

¶10

Mr. Somnath Thengal i/b Mr. Prasad P. Kulkarni for
Respondent Nos. 1 and 4.

¶11

CORAM :AMIT BORKAR, J.

¶12

DATED:NOVEMBER 6, 2023

¶13

P.C.:

¶14

1.The petitioner is challenging order passed by the Appellate
Court in exercise of power under Order 41 Rule 3A of the Code of
Civil Procedure, 1908 granting stay to the preliminary decree of
partition during the pendency of the application for condonation
of delay.

¶15

2.The petitioner is original plaintiff who filed Regular Civil Suit
No.113 of 1998 seeking partition and possession of the suit
property. The Trial Court by judgment dated 31st July 2008
decreed the suit in relation to property in paragraph No.1(e) of the
plaint which is an agricultural land. The Trial Court, therefore,
directed decree to be send to the Revenue Authorities under
Section 54 of Code of Civil Procedure, 1908.

¶16

¶17

32-6231-2022.doc

¶18

3.The purchaser of the property (defendant No.17) filed Civil
Appeal No.206 of 2013 against the preliminary decree of partition.
The Appellate Court by judgment and decree dated 31st July 2018
clarified the decree stating that the land purchased by defendant
No.17 shall be allotted firstly to the share of the defendant No.1.

¶19

4.The defendant No.1 filed Miscellaneous Application No.178
of 2019 under Section 5 of the Limitation Act 1963 seeking
condonation of delay in filing appeal against preliminary decree of
partition. The Appellate Court in exercise of power under Order 41
Rule 3A of the Code of Civil Procedure, 1908 granted stay to the
Trial Court’s decree dated 31st July 2008 till the decision of the
application for condonation of delay. The said order is subject
matter of the present writ petition.

¶20

The learned advocate for the petitioner relying on the Judgment in
the case of Surinder Pal Soni Vs. Sohan Lal (dead)
Through Legal Representatives reported in (2020) 15 SCC
771 submitted that decree dated 31st July 2008 have not been
modified by judgment and decree dated 31st July 2018. There is no
enforceable decree in force which could have been stayed by the
Appellate Court.

¶21

5.In my opinion, the legal preposition raised by the petitioner
has no substance. In a suit for partition, and possession of
immovable property, the Court passing the decree has option of
passing preliminary decree or final decree. Such discretion
depends upon nature of the property and nature of dispute
between the parties. If the Court passes a preliminary decree, in

¶22

¶23

32-6231-2022.doc

¶24

such decree, the Court adjudicates shares of the parties. In a final
decree, the Court decides which portion of suit property to be
allotted to which party to the suit. After adjudication of such rights
in final decree proceedings, the successful parties are entitled to
file application for execution. However, in relation to agricultural
properties, no final decree is required as has been recognized by
the Apex Court in the case of Bhikoba Deora Gaikwad and
Ors. Vs. Hirabai Mrutirao Ghorgare and Ors. reported in
(2008) 8 SCC 198 that in relation to land paying land revenue, the
Court while exercising power under Section 54 of the Code of Civil
Procedure, 1908 passes ministerial order.

¶25

6.In the facts of the case, from the decree passed by the
Appellate Court in Appeal No.206 of 2013 dated 31st July 2018,
the Appellate Court has passed a final decree without modification
of shares of the parties. In absences of modifying shares of the
parties, the preliminary decree passed by the Trial Court remains
unchanged. Therefore, it is always open for the aggrieved party to
challenge preliminary decree by way of appeal. Therefore, there is
no substance in the objections raised on behalf of the petitioner
that in view of modification of preliminary decree, the decree
passed by the Trial Court is no longer in existence.

¶26

7.Since the preliminary decree passed by the Trial Court and
particularly Clauses 2 to 4 thereof remain unaffected by judgment
and decree dated 31st July 2018, in my opinion, the Appellate
Court was justified in protecting the appellants during the
pendency of delay condonation application.

¶27

¶28

32-6231-2022.doc

¶29

8.There is no error of jurisdiction nor the exercise of discretion
by the Appellate Court suffers from any legal infirmity.

¶30

9.In absence of miscarriage of justice, no interference under
Article 227 of Constitution of India is called for.

¶31

10. The writ petition stands disposed of. No costs.

¶32

11. Considering the facts of the case, if the application for
condonation of delay is pending, the application shall be decided
on its merits within six weeks from today.

¶33

12. If the Appellate Court condones the delay in filing the
appeal, the appeal shall be decided within six months from today.

¶34

(AMIT BORKAR, J.)

¶35

Raju Mhalappa Khandekar and Anr. v. Shankar Tukaram Kokare and Ors.

Case brief

What is this about?

What did the court decide?

Raju Mhalappa Khandekar and Anr. v. Shankar Tukaram Kokare and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramchandra Ganapati Shinde Vs Smt. Indubai Bhagavan Yewale and Ors.

Dr. Sulabha Pranab Biswas and Ors. Vs Jayant Trimbak Patil and Ors.

Sharmishtha K. Patel Vs Chemofine Industries and Ors.

Shri. Babasaheb Charudatta Koruche and Ors. Vs Shobha Shantinath Gath @ Shobha Charudatta Koruche

Kailas Anna Atole Vs Mrs. Jayashree Kailas Atole

Abhay Dattatray Kulkarni and Ors. Vs Vitthal Gopala Tibile