Bombay High Court

VIMAL RAMKRUSHNA RASAL AND ORSversusKAMLAKAR BALRUSHNA THAKUR

Decided: 7 September 2026
Disposal: Disposed Off

Holding

A writ petition seeking a stay of execution is not maintainable where an appeal against the decree is already pending; the remedy lies in the appellate court.

Summary

The petitioners, Vimal Ramkrushna Rasal and others, filed a writ petition challenging an order of issue possession warrant passed by the Executing Court in Regular Darkhast No.3/2025. They contended that they had already filed an appeal against the decree that the warrant sought to enforce and therefore required a stay of execution. The High Court observed that since an appeal is pending before the District Court, the petitioners must pursue their remedy in the appellate forum rather than through a separate writ petition. The Court directed the petitioners to move the Appellate Court for a stay of execution and to have their appeal taken up on the board. Consequently, the writ petition was disposed without further order.

Issues considered

Whether a writ petition can be entertained to stay a possession warrant when an appeal against the decree is already pending.
Whether the execution of a decree can be stayed pending the hearing of the appeal before the District Court.

Subjects

stay of execution
possession warrant
appeal pending
civil procedure
writ petition
appellate jurisdiction

Judgment

                                                                     38-WP11428-2026.DOC

                                                                                 Santosh

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 11428 OF 2026

                      Vimal Ramkrushna Rasal and ors.                     ...Petitioners
                                      Versus
                      Kamlakar Balkrushna Tahkur                         …Respondent

                      Mr. Vijay Gharat, a/w Sarvesh Gharat and Nidhi Mankar, for
                            the Petitioners.

                                                     CORAM: N. J. JAMADAR, J.
                                                     DATED: 7th SEPTEMBER, 2026

                      PC:-

                      1.     Heard the learned Counsel for the petitioners.


                      2.     The challenge in this petition is to an order of issue

                      possession warrant passed by the Executing Court.             The

                      learned Counsel for the petitioners submits that, the petitioners

                      have already filed an appeal against the decree which is sought

                      to be executed in Regular Darkhast No.3/2025.


                      3.     Since the petitioners have already filed an appeal before

                      the District Court, the petitioners will have to work out their
SANTOSH
SUBHASH
KULKARNI
                      remedy before the Appellate Court in the pending appeal.
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.09.08
10:16:41 +0530



                      4.     A grievance was made on behalf of the petitioners that the

                      appeal is not being taken up for hearing.


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                                             38-WP11428-2026.DOC

5.   The learned District Judge seized with the appeal is

requested to take up the application for stay to the execution

and operation of the decree which is put to execution in Regular

Darkhast No.3/2025, expeditiously.


6.   The petitioners are permitted to move the Appellate Court

with a prayer to take the appeal on the board of the Appellate

Court.


7.   The petition stands disposed.

                                         [N. J. JAMADAR, J.]




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