* 1 * WP 5516/2003 11.10.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5516 OF 2003 1. Shri Ratansingh Dhansingh Pardeshi } Age : 52 yrs. Occ.: Business. } } 2. Smt. Janabai Marutisingh Pardeshi } Age : 50 yrs. Occ.: Household } } 3. Shri Sunilsingh Marutisingh Pardeshi } Age : 30 yrs. Occ.: Service } } 4. Shri Kishorsingh Marutisingh Pardeshi } Age : 26 yrs. Occ.: Service } } 5. Shri Rajendrasingh Marutisingh Pardeshi} Age : 24 yrs. Occ.: Service } } Petitioners 6. Shri Sachinsingh Marutisingh Pardeshi } (Ori. Decree Adult } holders) } 7. Ms. Vanita Marutisingh Pardeshi } Adult } } 8. Smt. Sunderabai Narayansingh Pardeshi} Age : 45 yrs. Occ.: Service } } 9. Shri Deepak Narayansingh Pardeshi } Age : 26 yrs. Occ.: Service } } 10. Shri Inderjeet Narayansingh Pardeshi } Adult } } 11. Shri Santoshsingh Narayansingh Pardeshi} Adult } } * 2 * WP 5516/2003 11.10.2010 12. Ms. Chandarani Narayansingh Pardeshi} Adult } } 13. Ms. Mandarani Narayansingh Pardeshi } Adult Nos. 1 to 13 r/o : 547, Shukrawar Peth, } Pune - 411 002 } } 14. Smt. Kamal Laxmansingh Rajput } Adult, } R/o : Kasarwadi, } Opp. Petrol Pump, Pune-Nashik Road, } Pune - 34. } } 15. Smt. Shakuntala Kalyansingh Pardeshi } Adult, } R/o : At & Post Bhavathan, } Tal. Wai, Dist. Satara., } } 16. Shri Raja Raisingh Pardeshi } Deceased. } } 17. Shri Shankar Ramsingh Pardeshi } Adult, Occ.: Service } } 18. Shri Manoj Ramsingh Pardeshi } Adult, Occ.: Service } } Nos. 16 to 18 r/o: Behind Bhaji } Market, Furniture Mart, } Baramati, Tal. Baramati, } Dist. Pune } } 19. Smt. Narmada Pralhadsingh Pardeshi } Adult, Occ.: Household } R/o : Behind S.T. Stand, } Shirur, Tal. Shirur, Dist. Pune } } * 3 * WP 5516/2003 11.10.2010 20. Shri Shamsingh Pandurang Pardeshi } Deceased Vs. Shri Balmukund Radhakrishna Pandit } Age : 47 years, Occ. : Business, } Respondent R/o : 547, Shukrawar Peth, } (Ori. judgment Pune - 411 002 } debtor) Mr. Sandeep Deo h/f Mr. P.K. Dhakephalkar, Advocate for petitioners. Mr. Prasad Kulkarni h/f Mr. P.S. Dani, Advocate for Respondent. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 11th October, 2010 P.C. 1. This writ petition filed under Article 227 of the Constitution of India seeks quashing of the order dated 25th July 2003 passed by 2nd Additional Judge, Small Causes Court, Pune on the application filed by the respondent at Exhibit 87 in Darkhast Proceedings No. 416 of 1989. 2. The brief facts giving rise to the present petition are as follows : . The petitioners filed suit in the Court of Small Causes at Pune bearing Civil Suit No.2174 of 1986 for possession of the * 4 * WP 5516/2003 11.10.2010 premises let out to the respondent. The suit was decreed on 28th April 1989. The respondent preferred Civil Appeal No. 646 of 1989 to the District Court, Pune. The appeal was dismissed on 27th July 1990. Thereafter he preferred Writ Petition No.3171 of 1992 to this Court. The petition was admitted and interim order of stay of execution of the eviction decree passed. Later on the petition came to be dismissed and the order of interim stay vacated. However, by then the right claimed by the respondent in the property had changed. One of the co-owners of the property namely Shamsingh sold his undivided share in the joint family property to the respondent. With this, the character of respondent as the tenant of the property came to an end. He then filed Special Civil Suit No.541 of 1991 in the Court of Civil Judge, Junior Division at Pune for partition of the joint family properties. In that suit, the interim order of stay of execution proceedings came to be passed by this court in Appeal from Order No.181 of 1992. The ad-interim order of stay passed on 20th February 1992, came to be confirmed on 21st November * 5 * WP 5516/2003 11.10.2010 2002. As a consequence, the Regular Darkhast 416 of 1989 came to be stayed. However, on dismissal of the respondent’s writ petition, and the vacation of the interim order of stay passed therein, the petitioners, despite there being an order of stay of execution in another proceedings i.e. the suit filed by the respondent, proceeded with the execution proceedings and obtained possession of the tenanted premises on 5th April 2003. Therefore, the respondent filed application at Exhibit 91 under Section 151 Code of Civil Procedure for restoration of possession. 3. It was contended in the application that the decree holder had wrongly executed decree and obtained possession of the suit property by suppressing the fact regarding interim order of stay of execution proceedings passed in the suit. The decree holder contended in the reply that he was not aware of the order dated 21st November 2002 and therefore once the writ petition filed by the respondent arising out of the execution proceedings were dismissed, he rightly proceeded with the execution of the proceedings. The record shows that * 6 * WP 5516/2003 11.10.2010 after the petitioners’ moved the Court for execution of decree, the Assistant Superintendent of the Court had called upon the petitioner to know whether there is any stay of the proceeding. Hence, on 11th March 2003, the petitioners filed an Affidavit (Exhibit-83) stating that there was no stay of the execution proceedings. Based upon that affidavit, possession warrant came to be issued in favour of the petitioners on 31st March 2003. 4. The trial Court, in the facts and circumstances of the case rejected the claim of the petitioners holding that the petitioners had obtained possession of the suit premises in violation of the order of stay to the proceedings and directed restoration of possession under Section 151 Code of Civil Procedure. The order impugned in the petition is correct in the facts and circumstances of the case. Execution of the decree in the face of the order of stay of execution cannot be sustained. The argument that the petitioners were unaware of the order of stay, cannot be a justification of the execution. That may be of some help to the petitioners in defending * 7 * WP 5516/2003 11.10.2010 contempt proceedings if filed against them, depending upon the facts of the case. Besides as the facts show, the decree had actually become in-executable on the respondent becoming a co-owner of the demised premises with the petitioners. In the circumstances, I find there is no merit whatsoever in the petition filed. The petition is dismissed. The petitioners are granted time of six weeks to hand over possession of the premises to the respondent. (SMT. R.P. SONDURBALDOTA, J) (SMT. R.P. SONDURBALDOTA, J)