Bombay High Court
MOHINI RESORTS PVT LTDversusSHOBHA SUDHARKAR MORE
- Decided
- Disposal
- Disposed Off
Holding
The executing court erred in directing the decree holder to elect a remedy; such direction is beyond its jurisdiction and the decree may be executed notwithstanding the pending special civil suit.
Summary
The petitioners challenged an order of the Small Causes Court that directed them to choose between executing a decree from Civil Suit No.1142 of 1965 and pursuing a pending Special Civil Suit No.1707/2009 concerning a larger tract of land. The petitioners argued that the two suits involve distinct subject matters and that the executing court cannot compel them to elect a remedy, especially when execution of the earlier decree is not barred by the later suit. The respondent contended that execution should be barred by limitation and that the decree holder must elect a single remedy, invoking principles of res judicata and abuse of process. The High Court held that the executing court had exceeded its jurisdiction by directing an election of remedies and that the decree could be executed notwithstanding the pending special suit. Consequently, the order directing the election of remedies was set aside and the writ petition was allowed.
Issues considered
- Whether the executing court can direct the decree holder to elect between execution of a decree and continuation of a pending special civil suit.
- Whether the pendency of a special civil suit bars execution of an earlier decree concerning the same property.
- Whether execution of the decree is barred by limitation.
- Whether directing an election of remedies constitutes an abuse of process.
Subjects
- execution of decree
- res judicata
- limitation period
- election of remedies
- civil procedure
- abuse of process
Judgment
2026:BHC-AS:34639
Diksha Rane 13 WP 7214 2024.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7214 OF 2024
MOHINI RESORTS PVT LTD ..PETITIONER
VS
SHOBHA SUDHARKAR MORE ..RESPONDENT
WITH
WRIT PETITION (ST) NO.3020 OF 2024
M/S MOINI RESORTS PRIVATE
LIMITED THR. ITS AUTHORIZED
SIGHNATORY ..PETITIONER
VS
MANGLA BALSINGH THORAT ..RESPONDENT
Senior Counsel Ranjit Thorat a/w. Adv. Rohan P. Surve, Adv.
Vikas Joshi for petitioners.
Adv. Ketki Gadkari for respondent.
CORAM : ARUN R. PEDNEKER, J.
DATE : 19th AUGUST, 2026.
Per Court :
WRIT PETITION NO.7214 OF 2024
1. Heard learned counsel for the parties.
2. Learned counsel for the petitioner by the present petition
challenges the order dated 4th January, 2024 passed on Exhibit-236
by the Executing Court. The Executing Court has particularly noticed
that an application filed for execution of a decree which has attained
Page 1 of 4
19th AUGUST, 2026
Diksha Rane 13 WP 7214 2024.docx
finality uptil the Supreme Court for execution of the decree. The
objection is raised by the obstructionist that the decree cannot be
executed as the applicant has also filed another suit being Special
Civil Suit No.1707/2009 for possession of the land which also
includes the property in the present suit. It is submitted that the
decree holder has also initiated execution proceedings in Civil Suit
No.1142 of 1965 and the defendant no.4 cannot initiate two parallel
proceedings against the third party for the same subject matter and
the person cannot be waxed twice for the same cause. Thus, it is a
abuse process of law.
3. Considering the objection raised by the petitioner, the
Executing Court has observed that the decree holder can either elect
to continue Special Civil Suit No.1707/2009 for relief of possession
or elect the remedy of execution of the decree passed in Civil Suit
No.1142 of 1965.
4. Challenging the order passed by the Small Causes Court
dated 4th January 2024, learned counsel for the applicant Mr. Thorat
submits that the subject matter of the Special Civil Suit
No.1707/2009 is entirely different. The relief claimed in the suit
relates to larger tracks of land and has no bearing upon the present
execution proceedings. He also submits that the Executing Court
cannot travel beyond the decree and direct the parties to elect a
remedy. Objection can be to the subsequent Special Civil Suit
No.1707/2009, if barred by res-judicata. However, in the execution
Page 2 of 4
19th AUGUST, 2026
Diksha Rane 13 WP 7214 2024.docx
proceedings initiated, there would be no objection for execution of
the decree in view of the filing of the subsequent suit.
5. Learned counsel appearing for the petitioners also points
out that an earlier application was also filed for similar relief at
Exhibit-285 which has been rejected by an order dated 27 th March,
2019. After dismissal, same objection is raised by the obstructionists,
and it is not available for the Executing Court to direct election of
either of the remedies. Learned counsel submits that he is entitled to
execute the decree in the Civil Suit No.1142 of 1965 notwithstanding
filing Special Civil Suit No.1707/2009 which is for larger track of
land.
6. Per contra, learned counsel Ms.Gadkari, appearing for the
respondent submits that the petitioner should elect a remedy by
proceeding in Special Civil Suit No.1707/2009 or elect a remedy of
executing the present decree. She also submits that execution of the
decree is barred by limitation. Learned counsel also submits that she
has a right in the suit property through the judgment debtor no.4
and that the decree is barred by limitation.
7. The obstructionist is at liberty to take such objection, which
she has independently taken, and the issue is in consideration before
this Court in another Writ Petition No.9686 of 2026. However, the
Executing Court cannot direct the decree holder to elect a remedy.
Page 3 of 4
19th AUGUST, 2026
Diksha Rane 13 WP 7214 2024.docx
8. Considering the same, the order passed dated 4 th January
2024, by the Executing Court directing the petitioner to elect a
remedy of either to proceed with execution of the decree or with
Special Civil Suit No.1707/2009 is erroneous in law and is
accordingly set aside.
9. The Writ Petition is allowed in terms of prayer clause (a).
WRIT PETITION (ST) NO.3020 OF 2024
10. Issue notice to the respondent, returnable on 2nd September,
2026.
[ ARUN R. PEDNEKER, J.]
Page 4 of 4
19th AUGUST, 2026
Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 21/08/2026 19:44:53
Checking your session…