ABDUL SALAM ABDUL SATTAR AFGHANversusGAJANAN MADANDAS VAISHNAV

2026:BHC-AUG:11032
                                                                        10-CRA-220-20183.odt

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                      CIVIL REVISION APPLICATION NO.220 OF 2018

                         Gajanan Madanlal @ Madands Vaishnav
                                        VERSUS
                                Abdul Salam Abdul Sattar
                                           …..
          M. Avinash D. Hande, Advocate for the Applicant
          Mr. Ashok P. Gaikwad, Advocate for Respondent
                                           …..

                                        AND
                            WRIT PETITION NO.3414 OF 2018
                                        WITH
                             WRIT PETITION NO.3787/2017
                            WRIT PETITION NO.13143/2017

                            Abdul Salam Abdul Sattar Afghan
                                         VERSUS
                               Gajanan Madandas Vaishnav
                                           …..
          Mr. Amit Tandulkar h/f Advocate for the Petitioner (Through V.C) in
          WP No.3314/2018
          Mr. S. S. Gangakhedkar, Advocate for Petitioner in WP No.3787/2017
          Mr. Vivek L. Kabade, Advocate for Petitioner in WP No.13143/2017
          Mr. Avinash Hande, Advocate for Respondent
                                           …..
                                       CORAM : SIDDHESHWAR S. THOMBRE, J.
                                       DATE       : 09.03.2026


          PER COURT :

          1.    Heard the learned counsel for the respective parties.

          2.    Pursuant to the order dated 11.08.2023 passed by the Senior-
          most Judge of this Court, Writ Petition Nos. 3414/2018, 3787/2017
          and 13143/2017 along with CRA No. 220/2018 are placed before this
          Court. Since all these matters are connected, all these petitions along
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with Civil Revision Application are being decided together, taking Writ
Petition No. 13143/2017 as the lead matter.

3.   The applicant in CRA No. 220/2018 is aggrieved by the order
dated 28.08.2018 passed by the District Judge–3, Nanded in Regular
Civil Appeal No. 43/2018.

4.    The learned counsel for the petitioner narrated the facts of the
case and submitted that the applicant is the landlord and the
respondent is a tenant in respect of a shop bearing NMC No. 3-6-525,
City Survey No.1888, situated at Balaji Mandir Area, Shri Guru
Govindsingji Road, Nanded. The applicant – original plaintiff filed RCS
No. 1188/2012 before the learned CJJD, Nanded against the present
respondent seeking eviction and recovery of possession of the suit shop
on the ground of bona fide requirement. The learned CJJD, Nanded
decreed the suit vide order dated 29.10.2014. The respondent herein
filed Regular Civil Appeal No. 151/2014, and the learned Appellate
Court vide order dated 25.06.2015 dismissed the said appeal and
confirmed the judgment and decree of the trial court.

5.   The respondent thereafter filed Civil Revision Application No.
148/2015 before this Court. This Court, vide order dated 02.09.2015,
rejected the said application. Thereafter, the applicant/decree holder
filed Regular Darkhast No. 101/2015 under Order XXI Rule 11 of the
Code of Civil Procedure for execution of the decree before the learned
Executing Court. The respondent/judgment debtor filed an objection
petition at Exhibit–63. The learned Executing Court, after hearing the
objection petitioner, rejected the Objection Petition at Exhibit–63 vide
order dated 22.02.2018. The respondent/judgment debtor thereafter
filed Regular Civil Appeal No. 43/2018, and the learned District Judge,
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Nanded allowed the said appeal and remanded the matter to the
Executing Court for fresh hearing.

6.    The learned counsel for the petitioner submits that the Appellate
Court ought not have remanded the matter, as the decree has already
been confirmed up to this Court. Therefore, the only step remaining
was execution of the decree. The learned Executing Court, while
considering the application at Exhibit–63, had rightly rejected the
same. It is further submits that the Appellate Court, while recording its
finding in paragraph No. 14, remanded the matter without assigning
any reasons. Hence, the order passed by the Appellate Court is liable to
be set aside.

7.    The learned counsel for the respondent submits that the decree
under execution is in respect of property CTS No. 1888. However, the
decree holder, by showing incorrect boundaries of CTS No. 1888, is
trying to take possession of CTS No. 1887, in which the judgment
debtor is residing as a tenant. According to the judgment debtor, the
decree holder has no concern with respect to CTS No. 1887, and
therefore, with an intention to grab the property of the judgment
debtor, the decree holder has deliberately shown the boundaries of
CTS No. 1887, which is in possession of the judgment debtor since
long. Therefore, he supports the order passed by the learned Appellate
Court. He further submits that the present Civil Revision Application is
not maintainable, and instead, the applicant ought to have filed a
Second Appeal.


8.    I have heard the learned counsel for the respective parties and
perused the order passed by the learned Trial Court whereby the suit
was decreed, which reads as under:
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     “1. Suit is decreed with costs.
     2. The defendant do deliver the possession of suit property i.e. shop
     bearing No. N.M.C. No.3-6-525, City Survey No.1888, Sheet No.1888,
     situated at Balaji Mandir, area Shri Guru Gobindsinghji Road, Nanded
     to the plaintiff within one month, from today.”

9.   The above order was challenged by filing an appeal, which was
also dismissed by the Appellate Court. This Court while considering
the Civil Revision Application No. 148/2015 vide order dated
02.09.2015 recorded the finding in paragraph No. 5, which reads as
under:-
     “5.     The landlord is seeking possession on the ground of bonafide
     requirement. It has come in the evidence that, the landlord is running
     his business in tenanted premises. The shop which is let out to the
     present petitioner is in a commercial area. The plaintiff is doing the
     business of Commission Agency of Haldiram products. The aspect of
     hardship has been considered. An issue in this regard has been
     specifically framed. However, the petitioner deliberately choose not to
     enter into the witness box. Both the Courts on appreciation of the
     evidence has concurrently come to the conclusion that, the landlord
     requires the suit premises bonafide for his own use and landlord
     would suffer greater hardship, if, the decree of eviction is not passed.
     It is also considered that, the landlord is doing his business in
     tenanted premises.


     With the above findings Civil Revision Application was desmissed
thereby confirming the order of the trial Court. Thereafter, in R.D. No.
101/2015, the Judgment Debtor filed Objection Petition vide Exhibit-
63 wherein the Executing Court recorded findings in paragraph Nos. 4
to 7, which read as under:-

     4.     The decree holder had filed the suit against the judgment
     debtor for eviction and possession on the ground of bonafide
     requirements. Initially the suit was decreed in which the judgment
     debtor could not cross-examine the decree holder and his witnesses.
     The judgment debtor had preferred the appeal before Hon'ble District
     Judge, Nanded against the decree passed in original suit bearing RCS
     No. 1188/2012. The Hon'ble District Judge, Nanded has remanded
     the suit for giving opportunity. to the judgment debtor. Thereafter,
     also the judgment debtor did not cross-examine the decree holder
     and his witnesses. Therefore, the suit is again decreed. The judgment
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      debtor again preferred the appeal before Hon'ble District Judge,
      Nanded and prayed for remanding the suit. But, the Hon'ble District
      Judge, Nanded has dismissed the appeal. Thereafter, the judgment
      debtor preferred Civil Application bearing 148/2015 before the
      Hon'ble High Court and challenged the order of the Hon'ble District
      Judge, Nanded. The Hon'ble High Court has dismissed the said
      application. Thereafter, the judgment debtor has filed various
      applications in this execution petition.

      5.     It is contended by the judgment debtor that this Court has not
      passed any order in respect of the property bearing No. 1887, but the
      decree holder is trying to take possession of said property. The decree
      holder had filed the same application vide Exh. 72 in this execution
      petition and prayed for framing issue. The said application is rejected
      by this Court. The judgment debtor did not raise the ground in the
      written statement of the suit that he is in possession of the property
      bearing CTS No. 1887. Moreover, this court has passed the Judgment
      in respect of the property bearing CTS No. 1888 only. Therefore, if
      the judgment debtor is in possession of property bearing CTS No.
      1887, he need to worry about it, because this court has not passed
      any decree in that respect.

      6.     It is admitted that the Judgment and Decree passed by this
      court in the suit is confirmed upto the Honble High Court. It appears
      that by filing the application, the judgment debtor is trying to
      challenge the order of Hon'ble High Court, before this Court, which is
      not legal. Moreover, the same contention was raised by the judgment
      debtor in the application (Exh. 72) which is rejected by this Court.
      The order passed by this Court on the application (Exh. 72) is not set
      aside by superior courts, yet.

      7.     It is contended by the judgment debtor that, the Judgment and
      the Decree is silent about the boundaries of the suit property. But, this
      court has passed the common order on the applications (Exhs. 10 and
      15) and the objection raised by the judgment debtor in respect of
      boundaries is decided by this court. The said order is also not set
      aside by the Hon'ble Superior courts. It appears that the judgment
      debtor is trying to prolong execution petition by filing this and that
      application. It further appears that the judgment debtor is raising
      same objection in every application.…….”


10.   I have also gone through the copy of the cross-examination of the
judgment debtor, wherein he has admitted the boundaries of the suit
property. I find that the learned Appellate Court, while remanding the
matter, has not recorded any reasons as to why it deemed it necessary
to remand the case. Admittedly, once the decree passed by the learned
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Trial Court has been confirmed up to this Court, the applicant–landlord
is entitled to obtain possession of the suit property. The decree holder
is entitled to execute the decree, and the judgment debtor appears to
be creating hurdles in the execution proceedings. More particularly,
while considering the application at Exhibit–63, the objection was
rightly decided by the Executing Court. I therefore find that the
learned Appellate Court, without recording any cogent reasons,
allowed the appeal and remanded the matter. As a result, the
applicant–landlord has been deprived of obtaining possession pursuant
to the decree passed by the Trial Court. In view of the above, I am
inclined to allow the Civil Revision Application.

11. In view thereof, the Civil Revision Application No.220/2018 is
allowed. The order dated 28.08.2018 passed by the District Judge–3,
Nanded, in Regular Civil Appeal No. 43/2018 is quashed and set aside.


12.     In view that the Civil Revision Application No.220/2018 is
allowed and the order passed by District Judge-3 Nanded, in Regular
Civil Appeal is quashed, the Writ Petition Nos.3414/2018, 3787/2017
and 13143/2017 are dismissed.

13.     Pending civil applications, if any, stand disposed of accordingly.



                                       [SIDDHESHWAR S. THOMBRE, J.]



Sameer/March-2026




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