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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 367 OF 2016
1. Khanambi Nazir Ahemed also
(Dead leaving behind Lrs. P.2 to P.7)
2. Jamir Ahmed Nazir Ahmed, aged 48 yrs.,
3. Amir Ahmed Nazir Ahmed, aged 38 yrs.,
4. Munir Ahmed Nazir Ahmed, aged 36 yrs.,
5. Samer Ahmed Nazir Ahmed, aged 34 yrs.,
6. Halim Afroz D/o Nazir Ahmed, aged 49 yrs.,
7. Salma Afroz D/o Nazir Ahmed, aged 47 yrs.,
all aged - major, occp. Business, r/o Hamza Plot,
Old City, Akola, Tq. & Distt. Akola.
No. 2, 4 to 7 by Power of attorney
Petitoner No.3. :: .... PETITIONER
L.R's of J. Dr.1 Nazir Ahmed Deft. 1 in suit.
// VERSUS //
1. Mohmed Rizwanul Haq s/o Mohmed Mobinul Hq,
aged 45 yrs., Occup. Business,
2. Mohmed Faizanul Haq s/o Mohmed Mobinul Haq,
aged 44 years, Occp. Business.
3. Smt. Mahe Anwar Wd/o Mobinul Haq
aged 69 yrs., Household,
4. Miss, Saheba @ Jeba d/o Mobinul Haq,
aged 43 years,
All r/o Haq Manzil, Mominpura, At Post,
Tah. & District Akola. (....Orig, plff./D. Hr.)
5. Shaikh Jalil S/o Shaikh Abed,
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aged 67 yrs., Motor Mechanic,
R/o Hanuman Mandir, Ratanlal Plots Road,
At Post Tah. & Distt. Akola.
(...Org. Deft.2/J.Dr.2):: .... RESPONDENTS
______________________________________________________________
Shri B. N. Mohta, Advocate for petitioners.
Shri R. A. Jain, Advocate for respondent Nos. 1 to 4.
______________________________________________________________
CORAM : S. B. SHUKRE, J.
DATED : 05 MAY, 2016 ORAL JUDGMENT :
None for respondent No.4.
Heard. Rule, made returnable forthwith. Heard finally by consent.
2. The title of the suit, Regular Civil Suit No. 107 of 2002, shows that the suit has been filed against two defendants and in this petition we are concerned with the name of defendant No.1. Defendant No.1 has been shown as, "Nazir Ahmed s/o Bashir Ahmed". The judgment and decree, however, has been passed against defendant No.1 being shows as, "Nasir Ahmed s/o Bashir Ahmed". The execution application (Exh.1) as amended up to date however shows that the proceedings are initiated against Nazir Ahmed Bashir Ahmed (deceased) and his legal heirs. That is why the petitioner filed objection vide his application at Exh.46 that such a decree cannot be executed against the petitioners.
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3. The objection, in my opinion, has been rightly taken by the petitioners. The decree has been passed against the person whose name is shown therein as, "Nasir". This might have occurred on account of a typographical error in the judgment and decree. But, the fact remains that an error apparent on the face of the record is there and, therefore, unless that error is corrected in accordance with law, no execution proceedings could have been initiated and if initiated, could not have been proceeded further. The learned Judge of the Executing Court has gone wrong in rejecting the objection taken in this behalf and also the application of the petitioner vide Exh.56 for grant of permission to lead evidence in the matter. Such an order, affects the rights of the petitioner, as contended by her vide her objection at Exh.46. In the circumstances, I am inclined to allow this petition to the extent the impugned order affects the rights of the petitioner.
Accordingly, the petition is allowed and the impugned order is quashed and set aside to the extent it affects the rights of the petitioner as contended by her in her applications vide Exhs. 46 and 56.
The matter is remanded back to the Executing Court for its fresh consideration in the light of the observations made herein above.
Meanwhile, if any review application is filed by ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 01:02:03 ::: wp367.16.odt 4/4 respondent Nos. 1 to 4 for correcting the error in the judgment and decree, same shall be disposed of within a period of two months by the concerned Court, in accordance with law and till that time the execution proceedings may be kept in abeyance.
Rule is made absolute in the above terms. No costs.
JUDGE wwl ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 01:02:03 :::