1 WP 5280/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5280 OF 2011 Shripati Hari Chavan .. Petitioner V/s Smt. Ratan Damodar Ghadge & Ors. .. Respondents Mr. S.V. Sadavarte for the petitioner. Mr. Vilas Tapkir for respondent nos.1 and 2. CORAM : D.G. KARNIK, J. DATE : 9TH AUGUST 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Tapkir waives service on behalf of respondent nos.1 and 2. Service of Rule on respondent nos.3 and 4 is dispensed with since they are formal parties inasmuch as they are original co-defendants along with the present petitioner. 3. Respondent nos.1 and 2 filed a suit against the petitioner and the respondent nos.3 and 4 for partition of the suit properties which are agricultural lands. By an order dated 22nd January 2010 the suit was decreed. Appeal filed by the 2 WP 5280/2011 respondents against the judgment and decree is pending in the District Court at Baramati. In the appeal, the petitioner applied for stay to the execution of the decree for partition till the decision in the appeal. By an order dated 20th November 2010, the District Court dismissed the application. That order is impugned in the present petition. 4. Since the decree is for partition and possession, in my view, it would be appropriate to stay the execution of the decree so far as it relates to possession. Normally execution of a decree for possession is stayed pending decision of an appeal when the other side is in possession of the property and the origin of possession is not unlawful. Taking this into consideration, in my view, the appellate Court ought to have stayed the execution of the decree so far as it relates to actual handing over of the possession. 5. For these reasons, the petition is partly allowed. The respondents are permitted to initiate and continue the execution proceedings. The Collector/subordinate officer deputed by him shall be entitled to proceed with effecting partition of the suit lands under section 54 of the Code of Civil Procedure. However, the actual delivery of possession of the lands shall not be effected till the disposal of Regular Civil 3 WP 5280/2011 Appeal No. 28 of 2010. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)