Bombay High Court

Dilip Vishwanath Amale and anrversusGayabai Shivaji Phopase

Disposal: APPLICATION ALLOWED

Holding

The court held that the civil application should be allowed to prevent frustration of the appeal's purpose due to the imminent execution of the possession warrant.

Summary

The appellant Dilip Vishwanath Amale and another filed a second appeal and a civil application seeking relief concerning a suit property. The respondent, Gayabai Shivaji Phopase, contested the claim. The core legal question was whether the plaintiff had proved possession of the suit property. The trial court had issued a possession warrant on 3 September 2026, which was likely to be executed. The High Court noted that if the warrant were executed, the purpose of the appeal would be frustrated. Consequently, the court allowed the civil application as prayed, effectively preserving the appellant's rights pending execution. The appeal itself was not decided on merits, but the application was granted.

Issues considered

Whether the plaintiff proves that she is in possession of the suit property?

Subjects

possession
civil application
execution
appeal
property dispute

Judgment

                                          1                         906 ca.4848.25.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD.
                 906 CIVIL APPLICATION NO. 4848 OF 2025
                              IN SA/242/2025

                  DILIP VISHWANATH AMALE AND ANR
                                  VERSUS
                        GAYABAI SHIVAJI PHOPASE
                                     ...
Advocate for Applicant : Mr. Tarek Mobin Shaikh, h/f Mr. Shaikh Joyeb Iqbal.
Advocate for Respondent : Mr. Sanket S. Kulkarni.
                                     ...

                                WITH
                     SECOND APPEAL NO. 242 OF 2025
                                 ...


                                   CORAM : SANJAY A. DESHMUKH, J.
                                   DATE       :   29th September, 2026.

P.C.:

SECOND APPEAL NO. 242 OF 2025

1        Heard learned Advocates for the appellants and the respondent.
Perused the impugned judgment and the judgment of the learned Trial
Court.


2        The following substantial question of law is formed:-


            “Whether the plaintiff proves that she is in possession of
            the suit property ?”


3        Issue notice to the respondent, returnable on 16th October,
2026. Mr. Sanket S. Kulkarni, learned counsel waives notice on
behalf of the respondent.
                                            2                          906 ca.4848.25.odt


      4     Call for record and proceedings.


      CIVIL APPLICATION NO. 4848 OF 2025

      5     Heard learned Advocates for the appellant and the
      respondent.

      6     It is pointed out that possession warrant has been issued by
      the Executing Court by passing an order dated 3rd September
      2026. It is likely to be executed. If it is executed, then the very
      purpose of filing of this appeal would be frustrated. The application
      therefore, deserves to be allowed as prayed.            Hence, Civil
      Application is allowed in terms of prayer clause (B).




                                            [ SANJAY A. DESHMUKH, J. ]
nga

Continue reading with your account

Checking your session…