Judgment 1 wp6019.16+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6019 OF 2016
WITH
WRIT PETITION NO. 6020 OF 2016
W.P.NO. 6019/2016.
Smt. Gangabai Babansingh Thakur,
Aged about 60 year, Occu. Agriculturist,
R/o. Keliveli, Tah. Akot, Dist. Akola.
.... PETITIONER.
// VERSUS //
1. Gram Mandal, Keliveli, through
the President, Dinkar Rambhan Gawande,
aged : 50 years, residing at Keliveli,
Taluka : Akot, District : Akola.
2. Kasabai Bhimsingh Thakur
since deceased through her legal
representative :
2(a) Basantibai Bharatsingh Thakur,
aged about 70 years, Occupation:
Household, residing at Keliveli,
Taluqa : Akot, District : Akola.
3. Kailashsingh Bhagirathsing Thakur,
aged about 50 years, Occupation :
Service, Residing at Ring Road,
Near Janorkar Mangal Karyalayas,
Kaulkhed Road, Akola.
4. Ratnabai W/o. Rajpalsingh Thakur,
aged about 50 years, Occupation :
Household, residing at Keliveli,
Taluka : Akot, District : Akola.
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5. Vijay S/o. Narayan Bule,
Aged about : 51 years, Occupation :
Cultivator, residing at Keliveli,
Taluka : Akot, District : Akola.
.... RESPONDENTS
.
___________________________________________________________________
Shri Vipul Bhise, Advocate for Petitioner.
Shri S.C.Mehadia, Advocate for Respondent Nos.1 & 2.
___________________________________________________________________
WITH
W.P.NO. 6020/2016.
Vijay S/o. Narayan Bule,
Aged about : 51 years, Occupation :
Cultivator, residing at Keliveli,
Taluka : Akot, District : Akola.
.... PETITIONER.
// VERSUS //
1. Gram Mandal, Keliveli, through
the President, Dinkar Rambhan Gawande,
aged : 50 years, residing at Keliveli,
Taluka : Akot, District : Akola.
2. Kasabai Bhimsingh Thakur
since deceased through her legal
representative :
2(a) Basantibai Bharatsingh Thakur,
aged about 70 years, Occupation:
Household, residing at Keliveli,
Taluqa : Akot, District : Akola.
3. Kailashsingh Bhagirathsing Thakur,
aged about 50 years, Occupation :
Service, Residing at Ring Road,
Near Janorkar Mangal Karyalayas,
Kaulkhed Road, Akola.
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4. Ratnabai W/o. Rajpalsingh Thakur,
aged about 50 years, Occupation :
Household, residing at Keliveli,
Talika : Akot, District : Akola.
5. Smt. Gangabai Babansingh Thakur,
Aged about 45 year, Occu. : Household,
residing at Keliveli, Taluka: Akot,
Dist. Akola.
.... RESPONDENTS
.
___________________________________________________________________
Shri R.D.Dhande, Advocate for Petitioner.
Shri S.C.Mehadia, Advocate for Respondent No.1.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : APRIL 19, 2017.
ORAL ORDER :
1. Heard learned advocates for the respective parties.
2. These two writ petitions are disposed by common judgment as in both these petitions same judgment passed by the learned District Judge is challenged.
3. The petitioner in Writ Petition No.6019 of 2016 along with original Smt.Kasabai Bhimsingh Thakur (Respondent No.2 in W.P. No.6019/2016) had filed Regular Civil Suit No.147 of 1998 against Vijay Narayan Bule (the petitioner in Writ Petition No. 6020 of 2016) and Gram Mandal, Keliveli (respondent No.1 in W.P. No.6019/2016) praying for decree for declaration that the defendant No.1 in the civil suit (petitioner in W.P. No.6020/2016) had no right, title or interest in the suit field and for directions to the ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:51 ::: Judgment 4 wp6019.16+1.odt defendant No.1 to handover the possession of the suit field either to the plaintiff or to the defendant No.2-Gram Mandal, Keliveli. By the judgment passed on 30th January, 2001, the trial Court granted decree in favour of the plaintiffs and directed the defendant No.1 to deliver possession of the suit field on receipt of Rs.24,000/- and interest thereon @ 6% per annum, to the plaintiff No.2 (petitioner in W.P.No.6019/2016). This judgment and decree was challenged by Sau. Kasabai Bhimsingh Thakur in appeal before the District Court. Shri Vijay Narayan Bule (defendant No.1/ Petitioner in W.P. No.6020/2016) had filed Cross Appeal under Order 41 Rule 22 of the Code of Civil Procedure challenging the findings on issue Nos. 2, 4 and 5. By the judgment given on 21st June, 2006 the learned Additional District Judge dismissed the appeal and the cross-objection, however, modified the decree and directed the plaintiff No.2 Smt. Gangabai Babansingh Thakur (petitioner in W.P. No. 6019/2016) to repay the amount of Rs.24,000/- along with interest thereon to the defendant No.1 and also to deliver the possession of the suit field to the defendant No.1 and directed the defendant No.1 to handover the possession of the suit field to the defendant No.2-Gram Mandal. The judgment and decree passed by the District Court was challenged by Vijay Narayan Bule (defendant No.1/ Petitioner in W.P. No.6020/2016) before this Court in second appeal and as there was delay in filing the second appeal an application praying for condonation of delay was filed. By the order passed on 20 th February, 2017, the application filed by Shri Vijay Narayan Bule praying for condonation of delay is dismissed. ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:51 :::
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4. The defendant No.2-Gram Mandal has filed execution proceedings which are registered as Regular Darkhast No.2 of 2013. In these execution proceedings, the plaintiff No.2-Sau. Gangabai Banansingh Thakur (petitioner in W.P. No.6019/2016) and the defendant No.1-Vijay Narayan Bule (petitioner in W.P. No.6020/2016) filed an application under Section 47 of the Code of Civil Procedure objecting to the execution proceedings. This application was rejected by the executing Court by the order passed on 16 th August, 2016. This order was challenged in Misc. Civil Appeal No. 15 of 2016 filed under Order 21 Rule 103 of the Code of Civil Procedure by Vijay Narayan Bule (petitioner in W.P. No.6020/2016) and Smt. Gangabai Babansingh Thakur (petitioner in W.P. No. 6019/2016). This appeal is dismissed by the impugned judgment.
The petitioners, being aggrieved by the judgment and order passed by the District Court and the Executing Court rejecting the application filed by them under Section 47 of the Code of Civil Procedure have filed these two petitions.
5. The submission on behalf of the petitioners is that the judgment passed by the District Court in Regular Civil Appeal No. 71 of 2005 (R.C.A. No.138/2001 old) to the extent Vijay Narayan Bule is directed to hand over the possession of the suit field to the defendant No.2-Gram Mandal, is illegal, without jurisdiction and in ignorance of the provisions of Section 27 and ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:51 ::: Judgment 6 wp6019.16+1.odt Section 30 of the Maharashtra Gramdan Act, 1964. It is submitted that Section 30 of the Maharashtra Gramdan Act, 1964 enables the Gram Mandal to make application to the Collector for cancelling the lease of any lessee if the lessee transfers his interest in the land in contravention of the provisions of Clause (b) of sub-section 1 of Section 27 or fails to pay any dues in respect of the land leased out to him or fails to cultivate the land for two consecutive years, and as the powers in the above matter is conferred on the Collector, the jurisdiction of the Civil Court is impliedly barred. It is argued that the Maharashtra Gramdan Act, 1964 is a complete Code in itself providing for the remedy available to the Gram Mandal, which according to Section 30 is before Collector and then an appeal before the Commissioner, the jurisdiction of Civil Court is barred. To support the submission, the learned advocates for the petitioners have relied on the following judgments :
i) Judgment given in the case of The Municipal Corporation of Greater Bombay Vs. Piagelal Pannalal Talwar, reported in AIR 1992 Bom. 283;
ii) Judgment given in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University & oth, reported in AIR 2001 SC 2552(1);
iii) Judgment given in the case of Brakewel Automotive Components (India) Pvt. Ltd. vs. P.R. Selvam Alagappan, reported in 2017 ALL SCR 798;::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:51 :::
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6. After hearing the learned advocates for the respective parties and examining the documents placed on the record of the petition, I am of the view that filing of the application under Section 47 of the Code of Civil Procedure on the grounds as stated in it is abuse of process of law.
Though, it is submitted on behalf of the petitioners that the decree which is being sought to be executed is inexecutable and is void ab initio and is nullity as the Civil Court had no jurisdiction to entertain and decide the civil suit, the petitioners/ objectors have failed to establish that the decree is nullity and void ab initio and that the jurisdiction of the Civil Court to entertain and decide the civil suit is impliedly barred because of the provisions of Section 27 and 30 of the Maharashtra Gramdan Act, 1964. Moreover, the petitioner in Writ Petition No. 6019 of 2016 had herself filed the civil suit and then accepted the decree passed by the trial Court inasmuch as she had not filed any appeal. The petitioner in Writ Petition No. 6020 of 2016 had filed cross-objection but never raised the ground/ objection which is now being sought to be raised.
7. In the judgment given in the case of M/s. Brakewel Automotive Components (supra) in paragraph No.22 it is recorded as follows:
"22.Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh vs. Jai Prakash University and others, AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much ::: Uploaded on - 24/04/2017 ::: Downloaded on - 25/04/2017 23:56:51 ::: Judgment 8 wp6019.16+1.odt narrower than those in appeal/ revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view."
Considering the facts of the case and the above proposition of law, I do not find any substance in the challenges raised in these petitions. I do not find any patent illegality or error of jurisdiction which necessitates interference by this Court in the extraordinary jurisdiction.
8. The petitions are dismissed. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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