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923-WP-3740-2022

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.3740 OF 2022

ARVIND PUNDLIK DHAMNE

VERSUS

RAMNATHAPPA GOPINATHAPPA HINGMIRE AND OTHERS

...

Advocate for Petitioner : Mr. Vijay Langhe h/f. Pooja Langhe.

.......

[CORAM : NITIN B. SURYAWANSHI, J.]

DATE : 25

^th MARCH, 2022

ORDER :

1.

The petitioner is aggrieved by the order passed by learned

8^th Joint Civil Judge Junior Division, Aurangabd, below Exhibit-20 in

Regular Darkhast No. 632017, whereby the application filed by

Judgment Debtor No. 1/Respondent praying to recall the precept

dated 12.11.2018 in the interest of justice, is allowed.

2.

The record indicates that the application Exhibit-18

praying for setting aside the exparte order is filed by Judgment Debtor

No. 1. In roznama dated 03.11.2018, direction was given to the

concerned clerk that ‘do not issue precept till the order is passed on

Bhagyawant Punde

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923-WP-3740-2022

Exhibit-18’. In spite of this from the record it is revealed that the

precept was sent on 12.11.2018, vide outward No. 12518/2018. In these

facts, the Executing Court has allowed the application filed by the

Judgment Debtor No. 1 and issued notice to the concerned clerk

calling his explanation and sent letter to the Collector communicating

that the execution proceedings to be stopped till further orders from

the Court.

3.

The learned advocate for the petitioner by placing reliance

on Barkat Ali & Anr. V. Badri Narain (D) by L.Rs (AIR 2008 Supreme

Court 1272), Mahadeo s/o Dinbaji Satwane Vs. Anandrao s/o

Ramkrishna Bicchu (Writ Petition No. 12010/2018), Kisan Bhiaji

Dalvi since deceased through L.Rs, Mohan Kisan Dalvi and ors. Vs.

Krishnabai Maruti Dalvi (2000(4) Mh.L.J.) and Prakash Natyaba

Bhosale Vs. Laxman Ganaba Bhosale (AIR 2003 Bombay 41), has

vehemently urged that once the precept is sent to the Collector, the

Executing Court becomes functus officio and has no authority to

decide the question in respect of contravention of provisions of law or

non- enforceability of decree due to subsequent events.

Bhagyawant Punde

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923-WP-3740-2022

4.

There can be no dispute about the preposition of law laid

down by the above citations. However, in the facts of the present case,

the Executing Court was justified in directing the Collector to stay the

proceedings, in view of position on record that in spite of specific

direction not to issue precept till the order is passed on Exhibit-18, the

Court was perfectly justified in passing the impugned order. It is not in

dispute that the Exhibit-18 is yet not decided. In that view of the

matter also, the impugned order cannot be faulted with. There is no

merit in the petition. The writ petition is dismissed. No costs.

[NITIN B. SURYAWANSHI]

JUDGE

Bhagyawant Punde