1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 9968 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 9968 OF 2010 *** 1. Heard Advocate Shri Amit Deshpande for the Petitioner/ defendant and Advocate Shri C. R. Deshpande for Respondent/ plaintiff in Regular Civil Suit No. 96 of 2007. 2. By impugned order, the prayer of stay made by Respondent has been allowed and the execution of judgment and decree undertaken in Regular Darkhast No.9 of 2008 has been stayed. The Regular Darkhast is for execution of judgment and decree obtained by petitioner in Regular Civil Suit No.366 of 2003. There, the trial Court granted present respondent, time of six months to file a suit for general partition and protected his possession in the meanwhile. That order has been up held in Second Appeal No.233 of 2008. 3. Shri Deshpande states that Regular Civil Suit No.96 of 2007 is not a suit for general partition. He further relies upon provisions 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 9968 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. of Order XXI Rule 29 and other provisions of Civil Procedure Code and some reported judgments to urge that the ongoing proceeding in Regular Darkhast cannot be stayed by third Court in a fresh suit. According to him, thus, there is error of jurisdiction. 4. Shri C. R. Deshpande has pointed out that the Respondent had filed Regular Civil Suit No.191 of 1996 for specific performance and after obtaining decree therein, he filed Special Darkhast No.3 of 1998. In that Darkhast, he recovered possession of the portion agreed to be sold to him. According to him, as the Respondent is purchaser from one of the co-parceners in Regular Civil Suit No.363 of 2003, the direction to enable him to file suit for partition and protecting his possession came to be issued. 5. The direction given in Regular Civil Sit No.366 of 2003 has attained finality. The liberty to file fresh suit was given to 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 9968 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. present Respondent by that judgment and decree. I, therefore, do not find any substance in contentions of Advocate Shri Amit Deshpande. Judgment cited by him do not consider this controversy at all. 6. Whether suit filed by Respondent is suit for general partition or not, and in the present facts whether it is maintainable in th form as filed, are the questions which can be gone into by trial Court. With liberty to petitioner/ defendant to raise those questions before trial Court again, present writ petition is disposed of. No costs. [B.P.DHARMADHIKARI, J.] Dated:31/01/2011. ans/9968