1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4293 of 2011 Manoj H. Borkar and others ..VS.. Hiraman B. Borkar and another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. P.S. Tiwari, Adv. for the petitioners. Mr. P.S. Sadavarte, Adv. for respondent nos. 1. Mr. M.A. Qureshi, Adv. for respondent no.2 CORAM : SMT. VASANTI A. NAIK J. DATE : 23 rd September, 2011. Heard. By this petition, the petitioners impugn the order passed by the appellate court on 17.08.2011 rejecting an application filed by the petitioners for grant of stay to the regular darkhast pending before the Joint Civil Judge, Jr. Dn., Nagpur. 2] The petitioners are the sons and daughters of one Smt. Shantabai Borkar. The respondent no.1 had filed a suit against Shantabai Borkar, the respondent no.2, for declaration and permanent injunction. The suit was decreed and by the judgment dated 30th September, 2005, the trial court declared that the respondent no.2 Shantabai had no authority to interfere with the possession of the property occupied by the plaintiff/respondent no.1. Shantabai, her agents and servants and the people acting on her behalf were restrained from interfering with the portion of the property owned and possessed by the respondent no.1. Shantabai was also directed to remove the 2 construction ad-measuring 20 x 30 ft. on the suit plot and restore the possession to the respondent no.1. The first appellate court dismissed the appeal filed by Shantabai against the judgment and decree dated 30.9.2005 and a second appeal was preferred by Shantabai. In the said second appeal, stay was granted at the initial stage but the same came to be vacated later on by an order passed by the High court on 28.1.2010. In view of the vacation of stay, the respondent no. 1 tried to execute the decree by moving an appropriate application in the execution proceedings filed in the year 2006. 3] After the decree was sought to be executed, the petitioners, the son and daughters of Shantabai, raised an objection to the execution of the decree. The said objection was dismissed by the executing court. Against the order of the executing court, the petitioners filed regular appeal before the first appellate court and sought for stay. The first appellate court held that the petitioners did not have a prima facie case as the stay granted by the High Court in the second appeal filed by Shantabai was vacated. Since the petitioners are the children of Shantabai, who contested the suit against the respondent no.1, which was decided on merits and since they were residing along with Shantabai in the suit premises, considering the nature of the objection and the nature of the decree passed in the suit filed by the respondent no.1, the first appellate court rejected the application filed by the petitioners for grant of stay. The first appellate court found that the respondent no.1 wanted to execute only the decree to the extent of 20 x 30 ft. of the suit house bearing no. 84. In the facts and circumstances of the case, the order passed by the first appellate court appears to be just and proper and cannot be said to be illegal or perverse. Moreover, the warrant of possession is executed with the aid of police on 16.9.2001. 3 In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE Hirekhan