Bombay High Court

SHRI. MANOHAR RAJAMRA SHINDE and ANR.versusRAJARAM MALHARI SHINDE and ORS

Disposal: Rejected

Holding

An order passed by consent cannot be vacated; the interim application is dismissed for default.

Summary

The respondents in a second appeal filed Interim Application No. 3467 of 2019 seeking to vacate an interim order dated 20 December 2018, which had been passed by a single judge of the Bombay High Court by consent of the parties. The earlier order allowed execution proceedings to continue but barred possession of the property until the final disposal of the appeal. Counsel for the respondents argued that because the order was issued by consent, it could not be set aside. The bench examined whether a consent order is amenable to vacatur through a subsequent interim application. Finding no merit in the request and noting that no counsel appeared for the applicant, the court dismissed the interim application. The dismissal was recorded as a default judgment.

Issues considered

Whether an order passed by consent of the parties can be vacated by a later interim application

Subjects

interim application
vacating order
consent order
dismissal for default
execution proceedings
possession
High Court of Bombay

Judgment

                                                               18-IA-3467-2019.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIRCUIT BENCH AT KOLHAPUR
                               CIVIL APPELLATE JURISDICTION
                           INTERIM APPLICATION NO. 3467 OF 2019
                                            IN
                               SECOND APPEAL NO. 67 OF 2018

                 Shri. Manohar Rajamra Shinde and Anr.         …Applicants
                       Vs.
                 Rajaram Malhari Shinde and Ors.             …Respondents
                                             WITH
                               CIVIL APPLICATION NO. 269 OF 2018
                                               IN
                              SECOND APPEALST NO. 33542 OF 2017
                                             WITH
                               CIVIL APPLICATION NO. 270 OF 2018
                                               IN
                              SECOND APPEALST NO. 33542 OF 2017

                 Smt. Yashoda Malhari Shinde                       …Applicant
                       Vs.
                 Shri. Manohar Rajaram Shinde and Ors.       …Respondents

                                            WITH
                            INTERIM APPLICATION NO. 16073 OF 2023
                                              IN
IRESH
MASHAL
                                 SECOND APPEAL NO. 67 OF 2018
                                            WITH
Digitally
signed by
IRESH
MASHAL
                         CIVIL APPLICATION (STAMP) NO. 20284 OF 2018
Date:
2026.09.09
10:11:37
+0530
                                              IN
                              SECOND APPEALST NO. 33542 OF 2017

                 Rajaram Malhari Shinde                            …Applicant
                       Vs.
                 Manohar Rajaram Shinde                       …Respondent

             Iresh
                                                          18-IA-3467-2019.doc


    None for the Applicant
    Mr. Shankar Katkar i/b Ms. Manisha Devkar, advocate for
    Respondent Nos. 4(c)(i)(ii) and (iii).
                         CORAM : RAJESH S. PATIL, J.
                         DATE : 3 SEPTEMBER 2026
    P. C. :

                  INTERIM APPLICATION NO. 3467 OF 2019

    1.    Learned counsel Mr. Katkar appearing for the Respondents

    submits that the Interim Application has been filed by the original

    Respondents in the Second Appeal thereby seeking relief of vacating

    interim granted in the present proceedings on 20 December 2018. He

    submits that by the said order, Single Judge of this Court, by consent

    of the parties, passed an order that execution proceedings will go on,

    but the possession of the property will not be handed over till

    disposal of the Second Appeal. He submits that since the order dated

    20 December 2018 was passed by consent, the said order could not

    be vacated.

    2.    In view of the submission made by Mr. Katkar, I do not find

    any merit in the Interim Application No. 3467 of 2019.

    3.    However, since none appears for the Applicant, Interim

    Application No. 3467 of 2019 stands dismissed for default.


                                                   (RAJESH S. PATIL, J.)

Iresh

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