Bombay High Court
The Ratnakar Bank Limited vs The State Of Maharashtra Through ... on 11 September, 2015
Bench: R.M. Savant
wp-3465.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3465 OF 2015
The Ratnakar Bank Limited ]
having its Regd. Office at ]
1st Lane, Shahupuri, ]
Kolhapur - 416-001 ]..... Petitioner.
Versus
1] The State of Maharashtra ]
Through the Office of the Government
ig ]
Pleader, Having his office at PWD ].... Deleted
Building, High Court, Bombay. ]
]
2] th
Ld. 6 Joint Civil Judge, Junior Division ]..... Deleted
Kolhapur. ]
]
3] Ushadevi Rajaram Nimbalkar ]
Age 72 years, Occ : Housemaker ]
]
4] Amarja Rajaram Nimbalkar ]
Age 46 years, Occ : Architect ]
]
5] Bajaji Rajaram Nimbalkar ]
Age : 45 years, Occ : Agriculture ]
]
All residing at C.T.S. No.2113, ]
Padma Castle Bunglow ]
`E' Ward, Tararani Chowk, Kolhapur ]..... Respondents.
Mr. P K Dhakephalkar, Senior Advocate with Mr. Ashish Gatagat i/by Vidhi
Partners for the Petitioner.
Mr. N V Bandiwadekar with Mr. Sagar Mane for the Respondents.
Respondent Nos.1 and 2 deleted by order dated 11/09/2015.
CORAM : R. M. SAVANT, J.
DATE : 11th September 2015
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ORAL JUDGMENT
1 At the outset the learned Senior Counsel appearing on behalf of
the Petitioner Shri P K Dhakephalkar seeks deletion of the Respondent Nos.1
and 2 on the ground that they are formal parties in the context of the challenge
raised in the above Petition. The said Respondents are accordingly deleted at
the risk of the Petitioner. Amendment to be carried out forthwith.
2 Rule with the consent of the learned counsel for the parties made
returnable forthwith and heard.
3 The writ jurisdiction of this Court is invoked against the order
dated 19/08/2014 passed by the learned Civil Judge, Junior Division, Kolhapur
by which order the learned Judge has framed four issues which are numbered
from (A) to (D) as the issues to be tried whilst deciding the objections raised
vide Exhibit 75 by the Respondent Nos. 3 to 5.
4 It is not necessary to burden this order with unnecessary details.
Suffice it would be to state that the said objections have been raised in the
Execution Proceedings which have been filed for execution of the decree dated
25/06/1974 passed in Special Civil Suit No.22 of 1973 in favour of the
Petitioner-Bank. It is pursuant to the decree that was passed that the Petitioner
Bank filed Special Darkhast No.72 of 1976 for execution of the said decree on
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18/06/1976. The Executing Court i.e. the learned Civil Judge Senior Division,
Kolhapur granted permission to auction the mortgaged property. It seems that
since there was a lukewarm response to the auction as no bids were received
pursuant to the auction which has held on 03/08/1979, the Petitioner Bank
thereafter obtained permission of the Executing Court to itself purchase the
suit property, which was granted. The Petitioner Bank accordingly purchased
the mortgaged property for an amount proportionate to the outstanding dues.
The Executing Court accordingly on 10/03/1980 granted a Sale Certificate in
favour of the Petitioner Bank in respect of the said mortgaged property which
the Petitioner Bank had purchased in auction. The Petitioner Bank thereafter
on 03/05/1980 filed Misc. Application No.1351 of 1980 for being delivered the
possession. It is during the pendency of the said application, one of the
Judgment Debtors i.e. Rajaram Nimbalkar expired on 08/11/1981. the
Executing Court allowed the Respondent Nos. 3 to 5 and one Mr. Dhairyasheel
Nimbalkar and one Ms. Sushila Nimbalkar being brought on record as his legal
heirs and representatives.
5 The said Dhairyasheel Nimbalkar filed his objection (Exhibit 50) to
the application filed for possession being Misc. Application No.1351 of 1980
filed by the Petitioner Bank. The objection raised by the said Dhairyasheel
Nimbalkar was to the effect that the mortgaged property is an undivided
property belonging to the Hindu Joint Family/ancestral property and therefore
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could not have been mortgaged or sold in auction. The Respondent Nos.3 to 5
also raised objections by adopting the objections raised by Dhairyasheel
Nimbalkar at Exhibit 50. The objection of the Respondent Nos.3 to 5 was
numbered as Exhibit 75. The said Misc. Application No.1351 of 1980 filed by
the Petitioner Bank was dismissed by the Executing Court on the ground that
the property was HUF property and the Objectors were minors and their rights
need to be protected. The Petitioner Bank challenged the said order dated
06/07/1991 by way of Civil Revision Application No.778 of 1991. The said
Civil Revision Application came to be admitted. During the pendency of the
said Civil Revision Application, Dhairyasheel Nimbalkar expired, pursuant to
which his wife Smt. Mayura Dhairyasheel Nimbalkar was brought on record of
the Civil Revision Application on 10/07/1992. The said Civil Revision
Application thereafter reached hearing on 07/06/2001. A learned Single
Judge of this Court Shri V.C.Daga, J. as His Lordship then was, by consent of
the parties set aside the order dated 06/07/1991 passed by the Executing
Court i.e. the learned Civil Judge Junior Division, Kolhapur and remanded the
matter back to the Executing Court and directed the Executing Court to treat
the application (Exhibit 50) filed by Dhairyasheel Nimbalkar and the
application (Exhibit 75) filed by the other heirs of Rajaram Nimbalkar as the
Applications filed under Order XXI Rule 97 of the Code of Civil Procedure. In
the context of the present Petition the following observation made by the
learned Single Judge is relevant, which for the sake of ready reference is
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reproduced herein under :-
"Considering the nature of purshis and objection raised,
I do not see any difficulty in setting aside the impugned
order by consent of the parties and directing the
executing court to prima facie treat those objections as
raised by the Respondents under O.21 R.97 of the CPC.
It shall be open to the Petitioner -decree holder to raise
all possible defence in reply as may be available in law
to challenge and meet the objections raised by the
Respondents including maintainability thereof under
O.21 R. 97 C.P.C. or any other provisions of law for the
time being in force. The executing Court shall decide
the said objections on its own merit. In view of this, the
impugned order dated 6.7.1991, passed by the Civil
Judge, SD, Kolhapur is set aside by consent of parties."
It appears that the Petitioner Bank did not file any reply to the objections
raised on behalf of the said heirs of Rajaram Nimbalkar i.e. to the Applications
(Exhibits 50 and 75).
6 The Executing Court by the impugned order held that it would be
appropriate to frame the following four issues :-
A] Whether the auction of suit property is legal ?
B] Whether the main application is bad for non joinder of
necessary parties?
C] Whether the applicant bank had right to purchase the
property in auction?
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D] Whether legal heirs of deceased Dadasaheb Nimbalkar and
Rajaram Nimbalkar have right to take objections to this
proceeding?
It is aggrieved by the framing of the said four issues that the instant Petition
has been filed by the Petitioner-Bank.
7 It is the contention of the learned Senior Counsel appearing for
the Petitioner Bank Shri Dhakephalkar that the Executing Court has erred in
framing the said four issues as only those issues can be framed which arise
between the parties and no other. The learned Senior Counsel in support of
the said contention sought to place reliance on the judgment of the Apex Court
reported in (1998) 3 SCC 723 in the matter of Silverline Forum Pvt. Ltd v/s.
Rajiv Trust and another wherein the Apex Court has held that only those
issues can be framed which issues arise on account of questions which have
legally arisen between the parties to the proceeding and must be relevant to
the adjudication. The learned Senior Counsel would therefore contend that
framing of Issue Nos. A, C and D as above was not warranted and apart from
Issue No.B, the only issue, which would arise namely whether the objectors
prove that they have independent right and whether they are bound by the
decree, was required to be framed.
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8 Per contra, the learned counsel appearing for the Respondent
Nos.3 to 5 Shri Bandiwadekar would contend that in the light of Exhibit 75
wherein the Respondent Nos.3 to 5 have questioned the auction as also
asserted that they had an independent right, that the said issues arise. The
learned counsel in support of his said contention sought to place reliance on
the judgment of the Apex Court reported in AIR 2002 SC 251 in the matter of
N.S.S Narayana Sarma and others v/s. M/s. Goldstone Exports (P) Ltd and
others wherein the Apex Court has held that the Executing Court is competent
to consider all issues raised by the persons offering obstruction against
execution of the decree and pass appropriate orders. It is the submission of the
learned counsel for the Respondent Nos.3 to 5 that the issues which have
framed arise out of the objections raised by the Objectors vide Exhibit 50 and
Exhibit 75.
9 Having heard the learned counsel for the parties, the question that
arises for consideration is whether there is warrant to frame the issues which
have been framed by the Executing Court. Before answering the said issues, it
would be apposite to re-visit the facts. As indicated above the decree in
question has been passed as long back as on 25/06/1974. The decree was
thereafter put in execution in the year 1976. The notice of auction was issued
on 03/08/1979, and it is pursuant to the permission granted by the Executing
Court that the Petitioner Bank purchased the property for the amount
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proportionate to the outstanding dues and the Sale Certificate came to be
issued in favour of the Petitioner on 10/03/1980.
10 Now coming to the Application (Exhibit 75), no doubt that a
learned Single Judge of this Court has directed that the said application is to be
treated as one under Order XXI Rule 97 of the Code of Civil Procedure and that
the decree holder i.e. the Petitioner Bank is entitled to raise such defences as
are available by filing reply. As indicated above no reply has been filed on
behalf of the Petitioner Bank. However, the facts as narrated herein above are
undisputed. In so far as Exhibit 50 is concerned, the said application is also to
be treated as an application under Order XXI Rule 97 of the Code of Civil
Procedure and filed by Dhairyasheel Nimbalkar who is also one of the heirs of
Rajaram Nimbalkar being his son. The said application is now being prosecuted
by the heirs of Dhairyasheel Nimbalkar. The decree is being questioned on the
ground that the property could not have been mortgaged as the said property
was HUF/ancestral property and therefore the Objectors have an independent
right. Hence the issue which is required to be established by the Objectors is
whether they have any independent right in the mortgaged property and
therefore whether they are bound by the decree. It is required to be borne in
mind that the objections can only be to the execution of the decree and
therefore the objections are to be such as impinges upon the decree and not
the events which have taken place post the decree. In the instant case, the
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Executing Court seems to have framed the Issues A and C which revolve
around the legality of the auction in view of the fact that the Objectors have
raised the said issues in the application (Exhibit 75). The said issues therefore
revolve around the events which have occurred post the decree. The Executing
Court was required to consider whether the said issues are germane to the
adjudication of the application which is one filed under Order XXI Rule 97 of
the Code of Civil Procedure. Merely because in an application under Rule 97
all questions arising between the parties have to be adjudicated in the manner
of a suit, the same would not mean that the scope of the inquiry is to be
enlarged to such an extent that any and every issue is required to be framed on
the basis of the pleadings. The defining aspect as indicated above is as to
whether the Objectors have a right to object which they can only be established
if they show that they have an independent right in the property. If once they
prove such a right than the same would undoubtedly have an effect on the
execution of the decree. As indicated above, the Issues A and C relate to the
events which had taken place post the decree and therefore do not have any
relevance in so far as execution of the decree is concerned. The said issues
have no nexus with the legality or otherwise of the decree. The learned counsel
for the Respondent Nos. 3 to 5 made a valiant attempt to contend that since no
reply has been filed to the applications Exhibits 50 and 75, the issues that have
been framed may therefore not be interfered with.
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11 In my view, it is not possible to accept the said contention of the
learned counsel for the Respondent Nos.3 to 5, as though no reply has been
filed, the issues which are only germane to the adjudication under Order XXI
Rule 97 are required to be framed and the scope of the enquiry is therefore not
required to be unnecessarily enlarged. In my view, therefore, the impugned
order dated 19/08/2014 is required to be quashed and set aside to the extent it
frames the said four issues which have been adverted to herein above. The said
four issues would stand substituted by the following two issues :-
A] Whether the main application is bad for non joinder of
necessary parties?
B] Whether the Objectors establish their independent right qua
the mortgaged/auctioned property ? And consequentially
whether they prove that they are not bound by the decree ?
The Executing Court is directed to try the aforesaid two issues whilst
adjudicating the application (Exhibit 75) by giving proper opportunity to the
parties. The above Writ Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute in the aforesaid terms with parties to bear their
respective costs of the Petition.
[R.M.SAVANT, J]
Certified to be true and correct copy of the original signed Judgment.
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