Applicants sought stay of a possession decree granted on a counter-claim during pendency of their second appeal. The court noted they had no protection since 2011 and apparently never challenged the counter-claim decree in earlier appeals, and rejected the civil application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.350 OF 2020
IN
SECOND APPEAL NO.389 OF 2020
Shantaram Parasharam Jadhav & Ors.....Appellants/Applicants
V/S
Lilabai Rajaram Jadhav & Ors. ....Respondents
Mr. Manoj Patil i/b Mr. Ashish P. Pawar for the Appellants/Applicants.
Mr. Nitin Mulye for Respondent No.4A to 4C.
CORAM: SANDEEP V. MARNE, J.
DATE : 19 APRIL 2024.
P.C.:
1The Civil Application is filed for seeking stay of the decree dated 30
August 2006 passed by Civil Judge Senior Division, Niphad in Special Civil
Suit No.19 of 2003 as confirmed by the First Appellate Court by its decree
passed in Regular Civil Appeal No.160 of 2012.
2The Second Appeal has already been admitted by this Court by framing
substantial question of law vide order dated 5 April 2023.
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3Perusal of the decree passed by the Trial Court would indicate that
while the suit filed by the Plaintiffs as well as the Counter-Claim filed by
Defendant Nos.1 to 3 are dismissed, the Counter-Claim filed by Defendant
No.4 came to be allowed and Plaintiffs are directed to handover possession of
the suit property described in the Plaint (para no.1A) to Defendant No.4.
4It appears that Plaintiffs filed First Appeal No.2439 of 2006 before this
Court challenging the decree of the Trial Court. Initially by order dated 11
October 2006 this Court granted ad-interim relief in favour of the Appellants
by staying the decree of the Trial Court. However subsequently the ad-interim
stay granted in favour of the Appellants came to be vacated by dismissing the
Civil Application by order dated 19 April 2011.
5Perusal of Memo of First Appeal filed by Appellants before this Court
would indicate that no ground was raised for challenging the decree passed in
the Counter-Claim. It also appears that while valuing the First Appeal, the
same was valued at Rs.5,51,000/-, which included valuation of Rs.5,50,000/-
for declaration and Rs.1,000/- for perpetual injunction. It appears that
Defendant No.4 had valued the Counter-Claim at Rs.416/- for possession.
Thus it is doubtful as to whether the First Appeal filed before this Court
raised any challenge to the decree passed in Counter-Claim filed by Defendant
No.4.
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6The same story continued before the First Appellate Court after First
Appeal No.2439 of 2006 was transferred to the District and Sessions Judge,
Niphad and numbered as Regular Civil Appeal No.160 of 2012. Though
amended Appeal Memo was filed, no ground was apparently raised
challenging the decree in Counter-claim filed by the Defendant No.4. There
again Appeal remained valued at Rs.5,51,000/- which did not contain
valuation of Rs.416/- in respect of decree of possession granted in the
Counter-claim.
7True it is that while filing the present Appeal, the Appellants have
grown wiser and has now sought to include challenge to the decree passed in
Counter-claim filed by Defendant No.4. Now the Second Appeal is valued at
Rs 5,51,416/- which includes valuation of Rs.416/- by raising challenge to the
degree of possession in Counter-claim filed by Defendant No.4.
8In view of the fact the ad interim order granted in favor of the
Appellants in First Appeal No.2136 of 2006 was vacated on 19 April 2011
coupled with the fact that the Appellants failed to include any ground of
challenge in respect of decree for possession passed in the Counter-claim filed
by the Defendant No.4, I am of the view that the decree passed by the Trial
Court cannot be stayed during pendency of the present Appeal. The
Appellants are apparently without any protection since 19 April 2011. It is
prima facie doubtful as to whether they ever challenged the decree for
possession in Counter-claim filed by Defendant No.4 before the First
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Appellate Court. For these reasons, I am not inclined to stay the decree of the
Trial Court during pendency of the present Appeal.
9 The Civil Application is accordingly rejected.(SANDEEP V. MARNE, J.)
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1 issue framed by the court
Whether the trial court's decree, including the possession decree in Defendant No.4's counter-claim, should be stayed during pendency of the Second Appeal.
Shantaram Parasharam Jadhav & Ors.
Lilabai Rajaram Jadhav & Ors.
Sandeep V. Marne
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court