Bombay High Court

SANJAY KACHARU NIMBALKAR AND OTHERSversusRAJENDRA BABURAO KHAIRE AND OTHERS

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

The High Court held that execution of the trial court’s decree must remain stayed while the substantive appeal is pending, and therefore dismissed the writ petition.

Summary

The petitioners, who were plaintiffs in a civil suit concerning land measurement, obtained a decree from the trial court directing the Taluka Inspector of Land Records to demarcate their land. The defendants appealed the decree and successfully obtained a stay of execution from the District Judge. The petitioners filed a writ petition challenging that stay, arguing that the appellate court erred in its reasoning and that they had an alternative remedy. The High Court examined the arguments, noting that the appeal against the trial court’s decree was still pending, and therefore the stay of execution was appropriate. Consequently, the Court rejected the writ petition and directed the parties to cooperate for an expeditious disposal of the appeal.

Issues considered

Whether the appellate court erred in granting a stay of execution of the trial court’s decree.
Whether the petitioners have an alternate efficacious remedy that negates the need for a stay.
Whether execution of a decree should be stayed pending the disposal of a substantive appeal.

Subjects

stay of execution
civil appeal
mandatory injunction
land demarcation
appellate jurisdiction
writ petition

Judgment

2026:BHC-AUG:3802

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

982 WRIT PETITION NO. 957 OF 2026

SANJAY KACHARU NIMBALKAR AND OTHERS
VERSUS
RAJENDRA BABURAO KHAIRE AND OTHERS
...
Mr. Sandip R. Sapkal, Advocate for the Petitioners
Mr. D. R. Jayabhar, Advocate for Respondent Nos.1 to 18.

CORAM : S. G. CHAPALGAONKAR, J.
DATED : 28th JANUARY, 2026

P. C. :-

1. The Petitioners impugn order dated 15.12.2025 passed by District

Judge-1, Newasa in Regular Civil Appeal No. 31 of 2025 below Exhibit 5 by

which judgment and decree passed by learned Civil Judge, Senior Division,

Newasa in Regular Civil Suit No. 89 of 2020 has been stayed.

2. The Petitioners herein are Plaintiffs in Regular Civil Suit No. 89 of

2020, which was decreed by Trial Court. The Trial Court after recording

evidence of parties, decreed suit vide judgment and order dated 09.05.2025.

Aggrieved, Defendants filed Regular Civil Appeal No. 31 of 2025 before

District Judge, Newasa. Along with appeal, they filed an application below

Exhibit 5, seeking stay on the execution of judgment and decree passed in

Regular Civil Suit No. 89 of 2020. The Appellate Court allowed application

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and stayed execution of decree by impugned order dated 15.12.2025.

3. Mr. Sandip Sapkal, learned Advocate appearing for Petitioners,

would submit that Appellate Court recorded erroneous reasons while

entertaining application for grant of stay. According to him, observations of

Court that Petitioners had an alternate efficacious remedy to seek

measurement of lands and therefore, direction by Trial Court in form of

mandatory injunction, directing T.I.L.R. to measure Plaintiffs land cannot be

countenanced. Mr. Sapkal, relying of exposition of law by Supreme Court of

India in case of E. Achuthan Nair Versus P. Narayanan Nair, 1987 AIR(SC)

2137, submits that suit for demarcation of boundary separating adjacent lands

of different owners is maintainable. As such, issue is no more res integra.

4. Apparently, Defendants are aggrieved by decree passed by Trial

Court, whereby directions were given for appointment of Taluka Inspector of

Land Records to measure land and fix boundaries of respective parties. The

issues which were framed in suit show that various disputed points have been

considered and decided by Trial Court. The issue regarding ownership,

encroachment and rights of parties over suit property have been dealt and

decided to certain extent in trial.

5. In that view of matter, it would be for Appellate Court to consider

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all objections raised in substantive Appeal by Respondents. As long as

substantive Appeal against Trial Courts decree is pending, it is imperative that

execution of decree is stayed.

6. In that view of matter, this Court do not find any reason to

entertain Writ Petition against order impugned. However, in the facts of case,

it would be appropriate for learned District Judge to endavour to decide

pending appeal expeditiously. Hence, Writ Petition stands rejected. Parties to

co-operate for expeditious disposal of appeal.

(S. G. CHAPALGAONKAR, J.)

ssp

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