Bombay High Court
CHANDRAKANT GOVIND MEHETAR AND ORSversusRAMJI DEVASTHAN TRUST APTE THRU. TRUSTEE AND ANR
- Decided
- Disposal
- Disposed Off
- Bench
- N JAMADAR
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
- Code of Civil Procedure, 1908 — s. Order XXI Rule 29
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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