1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.866/2011 KISAN GOSAI SHENDE ..VS.. SUKHDEO ZINGAR CHOPKAR & ORS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : SMT. VASANTI A. NAIK, J. D A T E : APRIL 21, 2011. Heard Shri Kharkate for the petitioner. The executing court did not commit any error in rejecting the application filed by the petitioner/ judgment debtor for grant of stay to the execution proceedings till the final judgment in R.C.S. No.104/2010. A suit was instituted by the respondent against the petitioner for removal of encroachment and the same was decreed. The decree attained finality after the judgment passed by the trial court was confirmed till the High Court as the first and second appeal filed against the judgment were dismissed. The respondent sought to execute the decree before the executing court. During the pendency of the execution proceedings, the petitioner filed Regular Civil Suit No.104/2010 for a declaration that the judgment passed by the trial court on 29.9.2002 in Regular Civil Suit No.45/1996 was obtained by fraud and the same was null and void. In view of the filing of the R.C.S.No.104/2010, the petitioner sought stay of the execution proceeding by filing the application. The application was however, rejected by the executing court, by the impugned order dated 8.10.2010. It appears that the executing court did not commit any error in rejecting the application filed by the petitioner, as the executing court found that the decree passed against the petitioner was challenged by him till the High Court and the High Court had confirmed the decree by 2 dismissing the second appeal filed by the petitioner. Though the decree was passed in the year 2002, after 8 years, the petitioner had filed Regular Civil Suit No.104/2010 for a declaration that the decree was obtained by a fraud and in such circumstances, the executing court held that this was not a fit case for staying the execution proceeding. The executing court cannot be said to have exercised its discretion under order 21 Rule 28 of the Code of Civil Procedure Code in an illegal manner, while rejecting the application for grant of stay. The executing court rightly did not stay the execution proceedings as in case the petitioner succeeds in Regular Civil Suit No.104/2010, he can again regain the possession of the property which he may lose in the execution proceedings. Since the order passed by the executing court is just and proper, the writ petition is dismissed with no order as to costs. JUDGE SMP