1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5819/2007 (Sanjay Shivdas Mendhe VERSUS Mahadeo Ukanda Nagrale & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri K.R. Lambat, counsel for the petitioner. Shri M.A. Bapat, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 7, 2008. Heard. By this petition, the petitioner impugns the order passed by the Civil Judge (Senior Division), Wardha on 11.10.2007 in Regular Darkhast No.138/1998 rejecting an application filed by the petitioner for restitution of the suit property. A suit was filed by the respondents against the father of the petitioner for possession of the suit premises. The suit was decreed on 30.03.1993. The respondent filed the execution proceedings in the year 1998 against the father of the petitioner. The petitioner raised an objection in the said proceedings under Order XXI Rule 97 of the Code of Civil Procedure stating therein that the suit property was allotted to him and he was the owner of the same. The executing Court had rejected the application filed by the petitioner. An appeal against the order rejecting the application under Order XXI Rule 97 of the Code of 2 Civil Procedure was also dismissed by the Additional District Judge. The petitioner preferred a civil revision application on 18.06.2003. Certain proceedings were filed by the parties thereafter and against the judgment passed by the District Judge in Miscellaneous Civil Appeal No.18/2003 on 26.03.2003, a civil revision application was filed by the petitioner before this Court. The matter was admitted and stay was granted in civil revision application on 07.10.2003. On 23.01.2007, the civil revision application was dismissed in default. After it was dismissed, on an application filed by the respondents, the warrant of possession was issued by executing Court on 02.08.2007. On 22.06.2007, an application for setting aside the order of dismissal was filed by the respondent before the High Court, but, the matter was not restored till 30.08.2007. In the absence of stay, it appears that the decree was executed on 20.08.2007 and the possession of the suit property was delivered to the plaintiff. The petitioner had filed an application for restitution of the suit property. I have perused the application filed by the petitioner for restitution of possession and the impugned order dated 11.10.2007. It is not in dispute that when the decree was executed and possession was handed over to the plaintiff on 20.08.2007, there was no stay operating in favour of the petitioner. In the absence of stay, the executing 3 Court was right in holding that the possession need not be delivered to the objector/ petitioner as the possession was delivered to the decree holder when no stay order was in force. Since, the civil revision application was dismissed in default on 23.01.2007 and since the matter was restored on 30.08.2007 and there was no stay operating during the intervening period from 23.01.2007 till 30.08.2007, the order passed by the executing Court cannot be found fault with. Since the possession was delivered to the decree holder when no stay order was in force, the application filed by the petitioner for restitution of possession was rightly rejected by the executing Court by the impugned order dated 11.10.2007. for the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE APTE