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Bombay High Court

CHANDRAKANT GOVIND MEHETAR AND ORSversusRAMJI DEVASTHAN TRUST APTE THRU. TRUSTEE AND ANR

Decided
Disposal
Disposed Off

Holding

The Court held that the Civil Judge correctly exercised his discretionary power to refuse a stay of execution, as the pendency of the adverse possession suit did not warrant staying the decree.

Summary

The petitioners sought a stay of execution of a decree passed in RCS No.132 of 2004 under Order XXI Rule 29 of the Code of Civil Procedure, arguing that their suit for adverse possession (RCS No.127 of 2015) was pending. The respondent trust had obtained a final decree for possession of the suit land. The High Court held that the power to stay execution is discretionary and not obligatory even when the statutory requirements are met. Since the earlier suit did not affect the finality of the 2004 decree, there was no justification to stay its execution. The Civil Judge’s refusal to grant a stay was affirmed, and the writ petition was dismissed as lacking merit.

Issues considered

  • Whether the execution of the decree in RCS No.132 of 2004 can be stayed under Order XXI Rule 29 of the CPC on the ground that another suit (RCS No.127 of 2015) is pending.
  • Whether the discretion of the Civil Judge to refuse a stay of execution can be overridden by the petitioner's claim of adverse possession.

Legislation cited

Subjects

  • stay of execution
  • Order XXI Rule 29
  • adverse possession
  • discretionary power
  • Civil Procedure
  • execution of decree
  • writ petition
  • High Court of Bombay

Judgment

2026:BHC-AS:8905

                                                                         20 wp 16784 of 2025.doc

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
                                WRIT PETITION NO.16784 OF 2025

            Chandrakant Govind Mehetar and Ors.                 ...   Petitioners
                  versus
            Ramji Devasthan Trust, Apte
            Through Trustee and Anr.                            …     Respondents

            Ms. Tooba R. Momin (through VC) for Petitioners.
            Mr. Rohit Joshi, for Respondent No.1.
            Mr. A.C.Bhadang, AGP for State.

                               CORAM:      N.J.JAMADAR, J.

                               DATE :      17 FEBRUARY 2026
            P.C.

            1.     Heard the learned Counsel for the parties.

            2.     The challenge in this Petition is to an order dated 4 August 2025

            passed by the learned Civil Judge, whereby the application preferred by the

            Petitioners – judgment debtors to stay the execution of the decree in RCS

            No.132 of 2004 under the provisions of Order XXI Rule 29 of the Code of Civil

            Procedure, 1908, on the ground of pendency of RCS No.127 of 2015

            instituted by the Petitioners, came to be dismissed.

            3.     The Respondent No.1 trust had instituted the suit for recovery of

            possession of suit land on the premise that the Defendant – predecessor in

            title of the Petitioners was a tenant and the trust required the suit land for

            cultivation   and augmentation of its income.       The decree of eviction has

            attained finality. By instituting RCS No.127 of 2015, the Petitioners are


            SSP                                                                  1/2
                                                                                  20 wp 16784 of 2025.doc

                      seeking declaration of title by way of adverse possession. As RCS No.132 of

                      2004 has been decided on merits and the defence of the Petitioners has been

                      discarded, at this stage, there is no propriety in staying the execution of the

                      decree passed in RCS No.132 of 2004 on the premise that RCS No.127 of

                      2015 instituted by the Petitioners is subjudice.         Ordinarily, permissive

                      possession cannot become adverse.

                      4.       In any event, the Court is not obligated to stay the execution of the

                      decree even when the requirements of Order XXI Rule 29 are fulfilled. The

                      power to stay is purely discretionary.

                      5.       Learned Civil Judge has correctly exercised the discretion not to stay

                      the execution of the decree passed in RCS No.132 of 2004.

                      6.       The Writ Petition, being devoid of substance, stands dismissed.




                                                                               ( N.J.JAMADAR, J. )




                      SSP                                                                 2/2



Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 21/02/2026 12:50:50


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