NARAYAN DHONDIBA GHAYWAT AND OTHERSversusCHANDRAKANT HARI GHAYWAT AND OTHERS

2026:BHC-AUG:46761
                                                  1                     15-WP.13573-26.odt


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                 15 WRIT PETITION NO. 13573 OF 2026

                             NARAYAN DHONDIBA GHAYWAT AND OTHERS
                                           VERSUS
                             CHANDRAKANT HARI GHAYWAT AND OTHERS

                                                    ...
                     Advocate for the Petitioners : Mr. Nagargoje Ankush Nivrutti..
                      Advocate for Respondents/Caveator : Mr. Ajay T. Kanawade.
                                                    ...

                                            CORAM : MANJUSHA A. DESHPANDE, J.
                                            DATE : 05.10.2026

                     PER COURT :-


                     1.    The petitioners are original defendant Nos.2, 4, 5, 7, 8

                     and 9 in RCS.No.13 of 2011 filed by the respondents herein.

                     According to the petitioners, although there was already a

                     partition effected amongst the heirs of original owner and

                     ancestor one Hona in the year 1955 itself. In spite of that, the

                     suit has been filed for partition and separate possession by

                     Haribhau/original plaintiff, who is predecessor of respondent

                     Nos.1 to 4. According to the petitioners, there were misled by

                     the plaintiff to believe that the suit for partition is limited only

                     to the extent of the share in Gut No.140. Therefore, they did

                     not oppose the suit since the partition was already effected in

                     the year 1955 and the petitioner had already acquired some

                     properties thereafter and some other properties were also sold
                            2                     15-WP.13573-26.odt


by the members of the other branch of the family.              The

petitioner has placed on record mutation entries recorded in

the year 1955 which indicates that partition of the property

owned by the original owner Hona had been partitioned

between three descendants Tukaram, Punja and Thama.


2.    It is further contention of the petitioners that, since the

petitioners were misled, they did not oppose the suit and

therefore, decree came to be passed against the petitioners on

26.06.2014. Only when the execution was filed by the

respondents herein did they come to know about the exact

nature of the decree passed by the Civil Judge Junior Division.

Therefore, they have immediately taken steps and filed RCA

before the District Judge, Sangamner accompanied by an

application for condonation of delay.


3.    It is the contention of the petitioners that, the petitioners

had already led evidence in support of condonation of delay

and it is now for the District Court to pass appropriate orders

on his application for condonation of delay. However, in the

meanwhile, the Tahsildar has passed an order on 20.07.2026

for execution of the decree of partition. Therefore, the

petitioners have filed an application below Exh.37 in Misc.

Application No.27 of 2022, praying for stay to the execution of
                            3                    15-WP.13573-26.odt


partition undertaken by the Tahsildar which came to be

rejected vide order dated 16.09.2026.


4.    It is the contention of the petitioners that, admittedly

there are certain lapses on the part of the petitioners, as a

result of which, the decree has been passed in favour of the

respondents. However, they have already filed an appeal

against the said judgment and order and it is pending

consideration before the Appellate Court. It is his contention

that if at all the application for condonation of delay is not

allowed, the decree can be executed by the respondents. The

petitioners may be granted some breathing time so that, his

application for condonation of delay can be adjudicated by the

Appellate Court.


5.    Learned advocate appearing for respondent Nos.1 to

4/Caveator opposes the prayer made by the petitioners in the

present Writ Petition contending that, the petitioners have

appeared in the suit but did not oppose neither did they file

their written statement opposing the suit. Since they have

conceded in the suit itself, they do not have any right to oppose

the execution filed by the respondents herein. Thus, the order

impugned has been rightly passed by the District Judge-4,

Sangamner.
                            4                    15-WP.13573-26.odt




6.    I have heard the respective parties and also gone

through the impugned order as well as the other documents

placed on record. Admittedly, the petitioners did appear in the

suit and has not filed any written statement as observed in the

order. However, the learned advocate for the petitioners has

demonstrated that, in fact under the belief that since already

there was partition effected between them and relief was

limited only to the extent of property in Gut No.140, they have

not opposed the suit. The claim of the previous partition is

supported by the mutation entry placed on record. Thus, I find

that, there is substance in the claim of the petitioners and they

have made out a prima facie case.         The petitioners can be

protected to some extent, till their application for condonation

of delay is decided by Appellate Court.


7.    After going through the impugned order, I am also in

agreement with the observations made by the District Judge-4,

Sangamner that, if the applicants are allowed to get the

execution of the decree stayed, without even filing an appeal, it

would amount to giving them benefit for their own wrong.

However, considering that, already the appeal filed by the

petitioners is pending and the Appellate Court is about to pass

the order, on the application for condonation of delay. The
                             5                    15-WP.13573-26.odt


petitioners deserves to be protected by delaying the execution

of the order for a period of eight (8) weeks so as to enable the

Appellate Court to pass appropriate orders on the application

for condonation of delay. Hence I pass the following order :

                            ORDER

      (i)     The order dated 16.09.2026 passed below Exh.37

              is set aside and the order dated 20.07.2026 passed

              by the Tahsildar shall not be acted upon for a

              period of eight (8) weeks from the date of this

              order.

      (ii)    In the meanwhile, the Appellate Court i.e. the

              District Judge Sangamner, is requested to decide

              the delay condonation application filed by the

              petitioners being Misc. Application No.27 of 2022

              preferably within a period of eight (8) weeks. If

              the petitioners fail to obtain favourable orders, the

              order dated 16.09.2026 shall be acted upon by the

              Executing court.

      (iii)   In the aforementioned directions, writ petition

              stands disposed of.

      (iv)    It is made clear that this Court has not expressed

              anything on the merits of the matter and all the
                       6                   15-WP.13573-26.odt


        points and contentions of the parties are kept open

        to be agitated before the Appellate Court.




                           (MANJUSHA A. DESHPANDE, J.)
                           ...
vmk/-