Bombay High Court

SHRI. RATNAKAR VAMAN PATIL AND ORS.versusSHRI. MADHUKAR DHAVU KATHOLE (SINCE DECD.) THROUGH LRS. AND ORS.

Decided: 28 April 2026
Disposal: Disposed Off
Bench: GAURI GODSE

Holding

The petition is disposed of as infructuous, subject to the liberty granted under Section 105 CPC to raise objections in the appeal.

Summary

The petitioners filed a writ petition seeking liberty under Section 105 of the Code of Civil Procedure, 1908 to raise grounds of objection in an appeal concerning a suit that had already been disposed of. The petitioners argued that the suit’s disposal rendered the writ petition infructuous, but they requested permission to file objections in the pending appeal. The Court examined whether the petition could be kept open for such a purpose. It held that the petitioners were entitled to the liberty under Section 105 to raise objections in the appeal. Accordingly, the writ petition was disposed of as infructuous, subject to the granted liberty to raise objections in the appeal.

Issues considered

Whether a writ petition becomes infructuous when the underlying suit is disposed of.
Whether the petitioners are entitled to liberty under Section 105 of the CPC to raise grounds of objection in a pending appeal.

Legislation cited

Code of Civil Procedure, 1908 — s. 105

Subjects

writ petition
Section 105 CPC
liberty to raise objections
infructuous petition
appeal
civil procedure

Judgment

15-WP-5520-2019.docx

rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5520 OF 2019

Shri Ratnakar Vaman Patil … Petitioners
and Others
Vs.
Shri Madhukar Dhavu Kathole … Respondents
(since decd) through LRs and Others

Ms. Sharwari Lopes for the Petitioners.
Mr. Laxmikant Patil h/f. Mr. Anil Kumar Patil for Respondent
No. 17.
CORAM : GAURI GODSE, J.

DATE : 28th APRIL 2026

ORDER :

1. Learned counsel for the petitioners submits that the suit

has been disposed of rendering this petition infructuous. She

submits that an appeal is already preferred, hence the

petitioner be granted liberty to raise grounds of objection on

the impugned order in the appeal in view of Section 105 of

Code of Civil Procedure, 1908 (“CPC”).

2. The petitioners’ liberty under Section 105 of the CPC to

Digitally signed
raise grounds of objections to the order impugned in the
by
RAJESHWARI RAJESHWARI
RAMESH
RAMESH PILLAI
PILLAI Date: petition is kept open.
2026.04.29
10:47:08 +0530

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15-WP-5520-2019.docx

3. The writ petition is disposed of as infructuous subject to

aforesaid liberty.

[GAURI GODSE, J.]

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