( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7200 OF 2008 Shaila Eknath Hande, R/o Wadgaon Landga, Tq. Sangamner, Dist. Ahmednagar. PETITIONER VERSUS 1. Bansi Mukta Dhokare, R/o (Kothe Kh) Khandgedara, Tq. Sangamner, Dist. Ahmednagar. 2. Rangnath Namdev Dhokare, R/o Wadgaon Landga, Tq. Sangamner, Dist. Ahmednagar. (Petition is dismissed as against this respondent as per Court’s order dt. 21-1-2010) 3. Raosaheb Vishnu Dhokare, R/o (Kothe), Khandgedara, Tq. Sangamner, Dist. Ahmednagar. 4. Geetabai Vishnu Dhokare, R/o (Kothe) Khandgedara, Tq. Sangamner, Dist. Ahmednagar. 5. Dashrath Santu Dhokare, R/o (Kothe) Khandgedara, Tq. Sangamner, Dist. Ahmednagar. RESPONDENTS ..... Mr. G.V. Wani, advocate for the petitioner. Mr. S.T. Shelke, advocate for respondent No. 1. Mr. S.K. Shinde, advocate for respondent No.5. None for other respondents. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th February, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel for the parties, heard finally. 2. The petitioner is original defendant in suit (R.C.S. No. 41/2005) filed by the respondent No. 1 (Bansi). The suit is for setting aside decree rendered in Spl. Civil Suit No. 24/1996. The Spl. Civil Suit No. 24/1996 was filed by the original defendants No. 1 and 2, who have been joined in the subsequent suit (R.C.S. No. 41/2005), for declaration, partition and possession of joint family properties. The suit was decreed. The contention of the respondent No. 1 (plaintiff) before the trial Court was that the Spl. Civil Suit No. 24/1996 was decided exparte, illegally and erroneously. He was not served with suit summons. He had no opportunity to defend himself in the previous suit (Spl.C.S. No. ( 3 ) 24/1996). Hence, he sought relief of setting aside the said decree. In his suit, he filed application (Exh-6) seeking interim stay to the execution of the decree passed in Spl. Civil Suit No. 24/1996 for which execution proceedings vide Spl. Darkhast No. 1/2002 was filed by the respondents No. 1 and 2. The learned Civil Judge allowed the application and granted stay to further execution of the Spl. Darkhast No. 1/2002 vide the impugned order dated 14-12-2006. The petitioner challenges the said order on the ground that it has been rendered illegally, and moreover the respondent No.1 (Bansi) suppressed material facts from the trial Court. 3. Heard learned counsel for the parties. 4. At the threshold, let it be noted that the petitioner’s counsel has placed on record copy of judgement rendered by this Court in First Appeal No. 732/2002. It appears from copy of the judgement (marked “X”) that respondent No. 1 – Bansi had challenged the decree passed in Spl. Civil Suit No. 24/1996 by filing First Appeal in this Court. This Court dismissed the ( 4 ) said first appeal. The contentions raised in the first appeal were identical to the contentions raised in the separate suit (R.C.S. No. 41/2005). It appears that the respondent No. 1 (Bansi) challenged the said decree on the ground that the land which was sold was put to his share, but the same was not considered while passing the said decree. It was also contended that he was not given proper opportunity to file his written statement and contest the suit. This Court repelled both the contentions holding that there was no merit at all in either of such contentions. 5. Considering the pleadings of the respondent No. 1 – Bansi in the separate suit (R.C.S. No. 41/2005), it is amply clear that he did not refer to the judgement of this Court in first appeal No. 732/2002. The suit for setting aside the decree was not maintainable at all in the teeth of dismissal of the first appeal. In fact, there was no case made out by the respondent No. 1 to entertain the suit nor there was any logical basis to stay execution of the decree. The learned Civil Judge failed to see that execution of the decree rendered in ( 5 ) the earlier suit could not be lightly stalled just for asking when the contentions raised by the respondent No. 1 (plaintiff – Bansi) were rejected by this Court in first appeal No. 732/2002. Needless to say, the impugned order is perverse and liable to be set aside. 6. Considering the foregoing reasons, I have no hesitation in holding that the impugned order deserves to be quashed. Hence, the petition is allowed. The impugned order is set aside. The Rule is made absolute. The trial Court shall consider whether the plaint may be rejected under Order-VII Rule-11 of the Civil Procedure Code alongwith compensatory costs, as may be permissible under the law. The respondent No. 1 – Bansi shall pay costs of Rs. 5000/- to the petitioner, being the cost of this petition. [ V.R. KINGAONKAR ] JUDGE NPJ/wp7200.08