Ushadevi Rajaram Nimbalkar & Ors vs The Ratnakar Bank Limited
2011 Latest Caselaw 261 Bom

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                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL  APPELLATE JURISDICTION




                                                                                
                        WRIT PETITION NO.9869 OF  2011




                                                        
     Ushadevi Rajaram Nimbalkar & Ors.                           ..       Petitioners
       Versus
     The Ratnakar Bank Limited                                   ..       Respondents




                                                       
     Mr. Ravi Kadam, Advocate General with Mr. V.M.Thorat  with Mr. Pratap 
     Patil for the Petitioners
     Mr. P. S. Dani with Ms Gargi Bhagwat i/b M/s. Divekar & Co. for the 
     Respondents. 
                                  CORAM  :  R. M. SAVANT, J.

DATED : 21st December, 2011

ORAL JUDGMENT

1 Rule. With the consent of the parties made returnable forthwith

and heard.

2 The above Petition takes exception to the Order dated 24-6-2011

passed by the Learned Civil Judge Junior Division, Kolhapur, by which

Order, the Misc Application No.1351 of 1980 came to be disposed of by

observing that since the objector is dead, the objections are "filed" for

want of the objector.

3 It is not necessary to burden this order with unnecessary facts.

However, suffice it to say, that there is a money decree passed in favour

of the Bank which is dated 25-6-1974. The execution proceedings for

executing the said decree were set in motion and the property in

question which was mortgaged was permitted to be auctioned. Pursuant

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to the said auction, the Respondent Bank itself purchased the said

property as there was no other buyer. On 3-5-1980 the Respondent

Bank filed Misc Application No.1351 of 1980 before the executing Court

under Order 21 Rule 95 of the Civil Procedure Code for possession of

the property on the basis of the sale certificate. At the relevant time

since the Judgment Debtor Rajaram Dadasaheb Nimbalkar had died, as

a consequence his son Dhaiyrasheel Rajaram Nimbalkar and daughter

Supriya Rajaram Nimbalkar were brought on record as heirs and legal

representatives of deceased Judgment Debtor Rajaram Dadasaheb

Nimbalkar. The said Dhaiyrasheel Rajaram Nimbalkar filed his objection

to the said Misc Application No.1351 of 1980 vide Exhibit 50 thereby

opposing the said Application on the grounds mentioned therein. A

separate objection application was also filed at Exhibit 75 by the

Petitioner Nos.1 and 3 herein and Supriya Nimbalkar adopting the

objections raised by Dhaiyrasheel Rajaram Nimbalkar. The Executing

Court by Order dated 6-7-1991 was pleased to dismiss the said Misc

Application No.1351 of 1980 filed by the Bank on the ground that the

property was HUF property and the objectors were still minors and their

rights were required to be protected. The Respondent Bank challenged

the aforesaid order dated 6-7-1991 by filing a Civil Revision Application

No.778 of 1991 in this Court. During the pendency of the the said Civil

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Revision Application, Dhaiyrasheel Rajaram Nimbalkar also died, as a

consequence of which Mayura Dhaiyrasheel Nimbalkar his wife was

brought on record of the Civil Revision Application. This Court by a

consent Order dated 7-6-2001 disposed of the Civil Revision Application

by setting aside the order dated 6-7-1991 and the executing Court was

directed to treat the objections filed vide Exhibit 50 and Exhibit 75 as

raised under Order 21 Rule 97 of the Civil Procedure Code. The

Executing Court was directed to decide the said objections on their own

merits.

3 Thereafter, it appears that the applications were filed by the bank

for issuing fresh notices to the heirs of the deceased Rajaram Dadasaheb

Nimbalkar, except the heirs of the Dhaiyrasheel Nimbalkar who had also

died. It appears that the Executing Court on 12-8-2003 passed an Order

on the said Application to reissue notices to Ushadevi Rajaram

Nimbalkar and Dhaiyrasheel Rajaram Nimbalkar. Pursuant to the said

notices, the Petitioners herein appeared in the said execution

proceeding and informed the Executing Court that Dhaiyrasheel

Rajaram Nimbalkar had died and that Supriya Rajaram Nimbalkar who

was the other heir of the Judgment Debtor Rajaram Dadasaheb

Nimbalkar had got married and her name after marriage was Surpriya

Ruturaj Jadhav and she was not residing with the Petitioners. It appears

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that thereafter the bank took steps to serve the unserved Respondents.

The said application was allowed by the Executing Court by Order

dated 23-9-2005. However, the heirs of the deceased Dhaiyrasheel

Nimbalkar were not brought on record and hence notice to them was

not served.

4 It appears that on 6-6-2006 the Respondent bank filed an

Application Exhibit 129 to set aside the objections filed by Dhaiyrasheel

Rajaram Nimbalkar at Exhibit 50, inter alia on various grounds. The

Petitioners filed their reply to the said Application and contended that

the objections of Dhaiyrasheel Rajaram Nimbalkar through his heirs as

also objections filed by the present Petitioners are required to be

considered. The Executing Court as indicated above, has by the

impugned Order dated 24-6-2011 closed the said Misc Application in

view of the fact that the objector Dhaiyrasheel Rajaram Nimbalkar is

dead. It is the said Order which is under challenge in the above Petition.

5 Heard the Learned Counsel for the parties.

It is an undisputed position that both the Dhaiyrasheel Rajaram

Nimbalkar and the present Petitioners had filed their objection

applications. The objections of Dhaiyrasheel Rajaram Nimbalkar were at

Exhibit 50 and so far as the objections of the present Petitioners are

concerned they were at Exhibit 75. In terms of the Order dated

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6-7-1991 passed by this Court (V.C.Daga, J.) the said objections were to

be considered on the touchstone of Order 21 Rule 97 of the CPC. The

fact that Dhaiyrasheel Rajaram Nimbalkar had died, was brought to the

notice of this Court in the Civil Revision Application as also the

Executing Court vide application Exhibit 122. Since there were two sets

of objections Exhibit 50 and Exhibit 75, the Executing Court in terms of

the directions of this Court was obligated to consider the said two sets

of objections by the two sets of objectors. However, inspite of the fact

that the death of the said Dhaiyrasheel Rajaram Nimbalkar and the

names of his heirs being brought to the notice of the Executing Court,

no notices were issued to the said heirs of Dhaiyrasheel Rajaram

Nimbalkar.

6 Apart from this, the Executing Court has not considered the

objections raised by the Petitioners herein though they were to the same

extent as those of the said Dhaiyrasheel Rajaram Nimbalkar. The

Learned Counsel Shri Dani appearing for the Respondent Bank does not

dispute this position. As can be seen from the impugned Order, the

Executing Court has closed the proceedings on the ground that the

objector is dead without even adverting to the objections filed by the

present Petitioners at Exhibit 75. In my view, therefore, the Order

impugned would have to be partly set aside and modified and hence the

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following directions:

(i) The impugned Order would operate only in so far as objections to

Dhaiyrasheel Nimbalkar Exhibit 50 are concerned.

(ii) In so far as, the objections filed by the Petitioners are concerned,

the Executing Court would decide the same in terms of the directions

contained in the Order dated 7-6-2001, passed in Civil Revision

Application No.778 of 1991.

(iii) Though the impugned Order has been set aside and modified to

the aforesaid extent, this Court has not expressed any opinion as

regards any application that would be filed by the heirs of the

Dhaiyrasheel Nimbalkar for the Order being set aside against them also.

In the event such an application is filed the same would be considered

by the Executing Court on its own merits and in accordance with law.

(iv) The objections Exhibit 75 on remand be considered by the

Executing Court within a period of two months from the appearance of

the parties before it. The parties to appear before the Executing Court

on 9-1-2012 at 3.00 p.m.

7 Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

( R. M. SAVANT, J. )