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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9768 of 2014
1 Kalyan S/o Baburao Bhorade
Age: 67 years, Occu: Agriculture,
R/o Pargaon (Jogeshwari),
Tq. Ashti, Dist. Beed
2 Bapurao Baburao Bharade (Died)
through LRs
2A Sudamatibai w/o Bapurao Borade
Age: 62 years, Occu: Household;
R/o Pargaon (Jogeshwari)
Tq.Ashti, Dist. Beed.
2B Shamal w/o Balasaheb Dhawan
Age: 39 years, Occu: household,
R/o Autewadi, Tq. Karjat,
Dist. Ahmednagar
3 Laxman s/o Bapurao Bhorade
Age: 41 years, occu: Agriculture;
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
4 Digambar S/o Vitthal Kadam,
Age: 48 years, Occu: Agriculture
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
5 Zumber S/o Vitthal Kadam,
Age: 45 years, Occu: Agriculture
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
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6 Deubai w/o Baban Anuse
Age: 54 years, occu: Household,
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
7 Shaikh Ratan Shaikh Burhan
Age: 59 years, occu: Agriculture,
R/o Pargaon (Jogeshwari)]
Tq. Ashti, Dist. Beed
8 Parwatibai w/o Baburao Bhorade
(died in 1966) Petitioners
Versus
1 Kisan s/o Saheba Musale (Died)
Through LRs
1A Bhausaheb S/o Kisan Musale,
Age: 44 years, Occu: Agriculture
R/o Pargaon (Jogeshwari)
Tq.Ashti, Dist. Beed
1B Mangal d/o Kisan Musale,
Age: 52 years, occu: household;
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
1C Manda d/o Kisan Musale
Age: 42 years, Occu: Household
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
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1D. Nanda d/o Kisan Musale
Age: 42 years, Occu: Household
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
1E. Sojar w/o Kisan Musale
Age: 64 years, Occu: Household
R/o Pargaon (Jogeshwari)
Tq. Ashti, Dist. Beed
2 Muktabai @ Parwatibai Vishnupant
Gophane
Age: 66 years,Occu: Household
R/o At Post Bhotra, tq. Paranda,
Dist. Osmanabad
3 Subhadrabai w/o Shahaji Khedkar
Age: 62 years, Occu: Household
R/o Sangvi, Post Takalsingh
Tq.Ashti, Dist. Beed
4 Sushilabai w/o Arvind More
Age:54 years, Occu: Household
R/o Gond Plot No.10, Ward No.11,
Behind Lok Vidyalaya, Wardha
Tq. & Dist. Wardha Respondents
Mr.N.K. Tungar advocate for the petitioners Mr. A.R.Tapse h/f Mr. P.D. Suryawanshi advocate for respondent Nos.1-A to1-E Mrs. S.P. Mahajan & Shri A.D. Rathod Advocates for respondent Nos.2 to 4.
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CORAM : RAVINDRA V. GHUGE, J
(Date : 5th July, 2017.)
ORAL JUDGMENT
1 Rule. Rule made returnable forthwith and heard finally by
consent of the parties.
2 The petitioners, original decree holders are aggrieved by the
order dated 6.9.2014 passed by the Adhoc D.J.-1, Beed, by which application for condonation of delay under section 5 of the Limitation Act for preferring an appeal against the Judgment & decree dated 23.2.2001 in RCS No.73/1995, has been allowed. 3 I have considered the submissions of the learned Advocates for the respective sides in extenso.
4 The only issue involved in this matter is as to whether the delay of 11 years 7 months and 11 days in lodging the Appeal against the decree was condonable or not.
5 The facts of the case are not disputed. Original defendant No.10 Kisan Saheba Musale had filed his Written statement on 4.7.1995 in the said Suit. He died on 29.11.1997. The suit was decreed by Judgment dated 23.2.2001. Neither Kisan's Advocate, ::: Uploaded on - 10/07/2017 ::: Downloaded on - 27/08/2017 22:10:35 ::: {5} wp 9768.14.odt nor the Advocate for any litigating side in the matter, informed the Civil Court that, defendant No.10 had passed away. Learned advocates for the respective sides do not dispute that, when the trial Court delivered the Judgment & decree, it was not within the knowledge of the Court and was not visible from the record that the death of Kisan was noted.
6 After the delay of 11 years and seven months, the legal heirs of deceased Kisan filed an application No.426 of 2012, praying for condonation of the delay so as to prefer the Appeal, before the Appellate Court for challenging the Judgment & decree. Three aspects were pleaded in the application. Firstly that, the decree is against a dead person. Secondly, that the applicants had no knowledge about the pending suit and thirdly, a notice was received by one Sushila Arvind More, who is the resident of the same village as that of the applicants and is aware about the decree having been put to execution. The Appeal Court has allowed the application by the impugned order only on one ground that, the applicants did not have the knowledge of the proceedings and being the legal heirs and oblivious of the litigation, is a good ground for condonation of delay. ::: Uploaded on - 10/07/2017 ::: Downloaded on - 27/08/2017 22:10:35 :::
{6} wp 9768.14.odt 7 There is no dispute that the original suit was for partition and separate possession. One factor that emerged in the suit was that the deceased Kisan had sold his share of the suit land. 8 Considering the principles of law, in so far as a decree being passed against a dead person or it being inexecutable against a person who was not a party to the suit is concerned, there can be no debate.
9 However, the facts of this case are peculiar. In the cross- examination of one of the applicants i.e. Bhausaheb S/o deceased Kisan, he has specifically stated before the Appeal Court that he was aware about the litigation to which his father Kisan was a party, he was aware that his father was attending different dates in the suit before the Civil Court at Ashti, whenever he used to go to the Court, the deponent Bhausaheb was given the knowledge, he knew the cause of action in the suit and he took no efforts to enquire about the fate of the suit after the demise of his father. 10 In my view, these admissions are fatal to the case of the respondents - applicants. The Trial Court has allowed the application for condonation of delay on a solitary ground that these applicants had no knowledge about the suit and being legal heirs, it was a good ground to allow them to prosecute the ::: Uploaded on - 10/07/2017 ::: Downloaded on - 27/08/2017 22:10:35 ::: {7} wp 9768.14.odt Appeal, by condoning the delay. The very foundation of the impugned order is destroyed by the admission given by witness Bhausaheb. It is, therefore, apparent that the Court passing the impugned order did not even care to go through the cross- examination of Bhausaheb who is the son of the deceased Kisan. 11 Learned advocate for the applicants has relied upon the judgment of this Court in the matter of Hongkong Investment Co. Pvt. Ltd versus Alvaro Jose Elvino De Braganza & Anr (2009 (3) All MR 407). I do not find that the said Judgment would assist the applicants for the reason that in that case, the concerned defendant died after the preliminary decree was passed and prior to the conversion of the decree into a final decree. This Court, therefore, held that even 17 years delay can be condoned since the defendant has passed away in between the preliminary decree and the final decree.
12 Notwithstanding the above, learned counsel for the legal heirs makes a request that his remedy as obstructionists should not be taken away by this Judgment. I find that the said request can be accepted. It prima facie appears that the legal heirs of deceased Kisan can take recourse to section 47 and order 21 rule 97 of the CPC in their capacity as obstructionists and raise ::: Uploaded on - 10/07/2017 ::: Downloaded on - 27/08/2017 22:10:35 ::: {8} wp 9768.14.odt grounds in the execution proceedings, which have now been initiated by the petitioners. Needless to state, this Court has not expressed any opinion about any right of the legal heirs and the same are left open to be considered by the Executing Court in the event they file their objections.
13 Considering the above, this petition is allowed. 14 The impugned order dated 6.9.2014 is quashed and set aside and Miscellaneous C.A. No.436 of 2012 stands rejected. 15 Pending Civil Applications do not survive and stand disposed of.
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