[kbp : ca1406­08] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1406 OF 2008 IN SECOND APPEAL NO.731 OF 2003 Nagesh Bandu Potdar and ors. .. Applicants V/s. Prabhavati Bapusaheb Kumbhojkar and ors. .. Respondents ..... Mr.Manoj A Patil, Advocate for applicants. Mr.Dilip Bodke, Advocate for respondent No.1. Mrs.Deshmukh, A.G.P. for Respondents No.2 and 3. ..... CORAM : R.Y. GANOO, J. DATE : 9TH JULY, 2009. P.C. : 1] Heard learned advocate on both sides. Few facts are required to be narrated before I come to the merits of the case. A decree of partition came to be passed by the learned 2 nd Jt. Civil Judge, Junior Division, Ichalkaranji vide judgment dated 13 th January, 2000 in Regular Civil Suit No.175 of 1994. Present applicant is party to the said suit. That decree came to be challenged before the learned District Judge by way of Regular Civil Appeal No.92 of 2000. The learned 6 th Addl. District Judge, Kolhapur, decided the appeal and partly modified the said decree. Present Second Appeal No.731 of 2003 was filed by the present applicant as appellant Nagesh Bandu Potdar. Civil Application was filed by the present applicant in the Second Appeal being Civil Application No.1070 of 2003 and said Civil Application was heard finally and decided by order dated 7 th September, 2004. By the said order Prayer Clause “b” of the Civil Application was granted thereby staying the order passed by the District Judge who had confirmed the order passed by the trial Court. 2] It is seen that the execution application for executing the the decree was filed in the appropriate executing court and steps were taken towards execution of decree. The present applicant came to know that the decree is going to be executed despite order dated 7 th September, 2004 because he received the notice from appropriate revenue authority for handing over the possession of the properties to the persons entitled to have it, on the basis of execution. It is seen that 4 th May, 2005 was the day fixed for delivery of the possession of the property involved over which the applicant is staking claims. The applicant had informed the Tahsildar by a letter dated Nil being a letter served on 17 th December, 2004 thereby informing that the matter is pending in the High Court and job of handing over the possession should be suspended. It is true that in the said letter specific order passed by the Court on 7 th September, 2004 was not spelt out and the appellant subsequently by letter dated 4 th May, 2005 i.e. the day when the possession was to be handed over, addressed a letter to the Divisional Officer, Hupri enclosing therewith a copy of Appeal. It is seen that the job of handing over the possession was performed on 4 th May, 2005 and present respondent received the possession. 3] It is seen that the revenue authorities were not properly briefed about the orders passed by the High Court on 7 th September, 2004. This is being stated on the basis of record produced before the Court. At the same time stay writ was sent to the Darkhast Table of the Principal Court, at Ichalkaranji. This is stated that on the basis of the report filed before learned 2 nd Joint Civil Judge, Junior Division, Ichalkaranj. 4] It is also required to be noted that when the order dated 7 th September, 2004 was passed learned Advocate Mr. Dilip Bodake who represented the respondent, was present in the court and said order was passed in his presence. In my view, the presence of Mr.Bodake, Advocate, means that the respondent has knowledge as regards the order dated 7 th September, 2004. With the aforesaid background I will have to consider whether prayer of restoration will have to be granted. 5] Before this Court, learned Advocate Mr.Patil submitted that on account of order dated 7 th September, 2004 his client is entitled to restoration, as against this, the learned Advocate Mr.Bodake submitted that the order for handing over the possession is passed by executing court and, therefore, applicant should approach the appropriate forum for setting aside the order passed in the execution and present Civil Application is not a proper remedy. He also submitted that the applicant ought to have filed application for restoration as provided under Section 144 of the Code of Civil Procedure and that has not been done. He submitted that present Civil Application is not a proper method to get back the possession. He also submitted that on perusal of prayer of the Civil Application on which order dated 7 th September, 2004 was passed and the decree passed by the Addl. District Court is stayed which in a way has confirmed decree passed by the learned trial Judge. He submitted that the prayer clause is defective and therefore there is no question of return of property to the applicant. He also submitted that looking to the provisions of the Order 41 Rule 5 of the Code of Civil Procedure this Court cannot pass order as prayed for. 6] Learned Advocate Mrs.M.M.Deshmukh, appearing on behalf of State has submitted that the possession was handed over by the Officers of the State Government bona fide and Officers of the State Government did not intend to disobey the order of the Court and in any case Officers were not served with any stay orders of this Hon’ble Court. So far as Officers of the State Government are concerned I am inclined to give them benefit of doubt and in that respect no view is required to be expressed. 7] So far as present respondent is concerned, as mentioned earlier, learned Advocate appearing on her behalf was present in the Court when the order was passed. This is the very material. The knowledge of order dated 7 th September, 2009 can therefore imputed to the respondent. Submission of learned Advocate Mr.Bodake that present applicants ought to have filed proceedings before the executing Court or challenge the order of executing cannot be accepted and in the peculiar facts the applicant was justified in making grievance to the Court which passed the stay order. The next submission of learned Advocate Mr.Bodake that there is bar of Order 41 Rule 5 of the Code of Civil Procedure cannot be accepted. Respondent was required to comply with the order passed by this Court. The contention raised by learned Advocate Mr.Bodake that the order passed by this Court on 7 th September, 2004 does not have effect of staying execution of decree, is misconceived. It may be possible that at the stage of drafting prayer clause in the Civil Application there could be some omissions. However, present respondents who had sufficient knowledge of said order cannot plead ignorance. When an order is passed at the time of admission of Second Appeal staying execution of decree passed by the District Court confirming the decree of trial court, it will have to be taken that the partition cannot proceed. The order was passed in the presence of the advocate for respondent and if there was any doubt for respondent it was open for her to seek clarification from this court as to what is scope of order dated 7 th September, 2005. Application for execution of decree was filed on 23 rd August, 2004 and the decree was executed on 4 th May, 2005. If at all the respondent had some doubt she could have clarified the said doubt by filing an application in this Court. 8] In my view, respondent knowing full well about the order of stay passed by this Court, proceeded for execution of decree. In my view a case is made out for restoration of possession and that is how the matter rests. 9] For the reasons mentioned above I am inclined to grant the Civil Application and direct the respondent to restore the possession of the property which was taken away from applicant on 4 th May, 2005. 10] Lastly, learned Advocate Mr.Bodake made a grievance that his client is more than 70 years old and fighting for her case. If this is the position then some relief can be given to respondent by directing that the Second appeal be taken up for final hearing expeditiously. In view of above, following order is passed : O R D E R i. Respondent No.1 Prabhavati Bapusaheb Kumbhojkar shall deliver the possession of the property more particularly set out in the Civil Application, to the present applicants on or before 31 st July, 2009. ii. If the applicant does not get the possession from the respondent No.1 of the said property, he shall make an Application before the learned 2 nd Joint Civil Judge, Junior Division, Ichalkaranji, making grievance that this order is not complied with. Upon making said Application the learned Judge shall pass appropriate order and issue warrant of possession. iii. Civil Application is disposed of in above terms. There shall be no order as to costs. iv. Print and paper book of Second Appeal are dispensed with. Respondent to prepare paper book of second appeal and serve copy of it to Advocate for appellants. Second Appeal be fixed for final hearing in the week commencing from 31 st August, 2009. Paper book prepared by the Respondent be filed in the office before 31 st August, 2009. 11] This order is passed in presence of Mr.Bodake, learned Advocate for respondent, who has appeared in this Civil Application as well as Second Appeal. Mr.Bodake, learned Advocate, shall communicate this order to his client so that there would not be any grievance of the respondent that the order is not communicated to her. Respondent will not wait for regular writ. 12] After this order is passed learned Advocate Mr.Bodake informed that Chandrakant Kumbhojkar, son of respondent No.1 is present in the Court and he [Mr.Bodake, Advocate] will immediately communicate this order to said respondent by addressing a letter. [ R.Y. Ganoo, J. ]