1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1154 OF 2009 Rangnath s/o. Gyanaba Agarkar, Age 60 yrs., Occu. Agriculture, R/o. Dighol (Deshmukh), Tq. Renapur, Dist. Latur. ....Petitioner. Versus 1. Suresh s/o. Rangnath Agarkar, Age 33 yrs., Occu. Agriculture, 2. Dayanand s/o. Rangnath Agarkar, Age 29 yrs., Occu. Agriculture, 3. Shaikh Rashid s/o. Gulabsaheb, Age 47 yrs., Occu. Agriculture, All R/o. Dighol (Deshmukh) Tq. Renapur, Dist. Lature ....Respondents. Shri. C.R. Deshpande, Advocate for the petitioner. Shri. S.N. Rode, Advocate for the respondent No. 1. CORAM : R.M. BORDE, J. DATE : 18th March, 2010 ORAL JUDGMENT : 1. Heard Shri. C.R. Deshpande, learned counsel appearing for petitioner and Shri. Rode, learned counsel appearing for respondent No. 1. Respondent Nos. 2 and 3 are served, but they remained absent. 2. Rule. With the consent of parties, petition is taken up for final disposal. 2 3. The petitioner is original defendant in Regular Civil Suit No. 288/1999. The suit was presented by respondent No. 1/original plaintiff, claiming partition and separate possession of the ancestral properties. After proper contest, the suit was decreed by the trial Court and the plaintiff was held entitled to secure 1/3rd share in the agricultural properties. The original plaintiff preferred appeal being Regular Civil Appeal No. 193/2002, raising exception to the decree passed by the trial Court, putting forth his entitlement to a larger share in the suit properties. The defendant also presented cross appeal and objected the decree passed by the trial Court, declaring the plaintiff's entitlement to the extent of 1/3rd share. The appeal presented by the original plaintiff came to be dismissed. However, the cross appeal presented by the original defendant was allowed and the decree passed by the trial Court was quashed and set aside in its entirety. In the meanwhile, the plaintiff presented Regular Darkhast No. 137/2002, claiming execution of decree passed by the court of first instance. The Darkhast proceedings presented by the plaintiff/decree holder were renumbered as Regular Darkhast No. 108/2008. The natural consequence of decision rendered by the first appellate Court in Regular Civil Appeal No. 193/2002 is that the suit presented by the plaintiff stood dismissed in its entirety. In this view of the matter there was no question, seeking execution of decree and proceeding further. 3 4. It is pointed out that there is second appeal presented by the original plaintiff raising exception to the judgment and decree passed by the first appellate Court and the same is pending. In the pending second appeal the parties are directed to maintain status quo i.e. parties are directed not to create third party interest. However, the interim order passed in the second appeal does not lead to any inference that the proceedings of Regular Darkhast No. 108/08 presented by the original plaintiff shall continue. The trial Court, it appears, misinterpreted the order and has rejected the application presented by the original defendant, requesting the Court to stay the proceedings in respect of execution of decree. As stated above, as consequence of decree passed by the first appellate Court, there does not remain any executable decree in favour of plaintiff and as such, the proceedings for execution cannot be permitted to continue. In fact there cannot be any execution proceedings for execution of decree which is not at all in existence. In this view of the matter, the executing Court has fallen in error in rejecting the application tendered by the defendant seeking stay of the proceedings in Regular Darkhast No. 108/2008. In my opinion, the proceedings for execution cannot proceed in the absence of any decree in favour of plaintiff. The question of execution of decree will arise only after the decision of the pending second appeal and that too if it turns out in favour of the plaintiff. The order passed by the trial Court is obviously erroneous and therefore, liable to be quashed and set aside. 4 5. In the result, the order passed by the executing Court on 22.1.2009 in Regular Darkhast No. 108/08 is quashed and set aside. The trial Court is directed, not to proceed with the execution proceedings being Regular Darkhast No. 108/2008 and the further course of the proceedings will depend upon the outcome of the pending second appeal presented by the plaintiff in the High Court. Rule is made absolute in the above terms. In the facts and circumstances, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/wp1154.09