Bombay High Court
Rammanohar Ramphal Pandey ... vs Dr. Surendra Babulal Patel on 1 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.1603 OF 2016
Rammanohar Ramphal Pandey -
since deceased, through L.Rs.
1. Smt. Nirmaladevi w/o. Rammanohar Pandey,
Aged about 70 years,
Occupation : Household work.
2. Shashikant Rammanohar Pandey,
Aged about 38 years,
Occupation : Agriculture.
3. Indrakant Rammanohar Pandey,
Aged about 35 years,
Occupation : Agriculture.
4. Vijaykant Rammanohar Pandey,
Aged about 33 years,
Occupation : Agriculture.
5. Ku. Mamta Rammanohar Pandey,
Aged about 30 years,
Occupation : Household work.
6. Kavita d/o. Rammanohar Pandey,
Aged about 24 years,
Occupation : Household work.
All R/o. Village Tambli, Tq. Dharni,
Distt. Amravati.
7. Umakant Rammanohar Pandey,
Aged about 55 years,
Occupation : Service.
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R/o. 301, Shakti Diamond Apartment,
Near J.P. Chamber, Ketargani
Darwaja, Surat (Gujrat).
8. Vishnukant Rammanohar Pandey,
Aged about 59 years,
Occupation : Business,
R/o. Brahmaputra Building No.5,
Room No.202, Unitake Bus Stand,
Biru Best (Mumbai).
9. Sau. Lilawati w/o. Dinesh Tiwari,
Aged about 49 years,
Occupation : Household worker,
R/o. Bhimgarh, Post Rajamali,
Tq. Gouriganj, Distt. Sultanpur (U.P.)
10. Sau. Pramila w/o. Indradatt Pandey,
Aged about 45 years,
Occupation : Household work,
R/o. At Post Dichhulia,
Tq. Musafirkhana,
Distt. Sultanpur (U.P.) : PETITIONER
...VERSUS...
Dr. Surendra Babulal Patel,
Aged about 65 years,
Occupation : Medical Practitioner,
R/o. Dharani, Tq. Dharni,
Distt. Amravati. : RESPONDENT
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Mr. S.S. Dhengale, Advocate for the Petitioners.
Mr. Anjan De, Advocate for the Respondent.
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CORAM : S.B. SHUKRE, J.
st
DATE : 1
APRIL, 2016.
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ORAL JUDGMENT :
1. Heard. Rule. Rule made returnable forthwith.
Heard finally by consent of learned Counsel appearing for the
parties.
2. By this petition, the petitioners have challenged the
legality and correctness of the order dated 16.9.2015, passed below
Exh.-116, in Regular Darkhast No.2/2012, by the Civil Judge,
Junior Division, Dharni, District Amravati. By this order, the
learned Civil Judge has rejected the application of the petitioners
filed under Section 47 of the Code of Civil Procedure for grant of
permission to adduce evidence and setting aside the judgment and
decree passed on 21.1.1995 in Special Civil Suit No.11/1993.
3. According to the learned counsel for the petitioners, the
impugned order is illegal and arbitrary as it does not take into
account main question involved in this case, which is of suppression
of material facts by the respondent and thus playing fraud upon the
Court in obtaining a decree, which is sought to be challenged by the
petitioners. He submits that in Regular Civil Suit No.5/1994 the
respondent gave a categorical admission that Parmeshwardayal
Pandey, brother of deceased Rammanohar Pandey of whom the
present petitioners are the legal heirs, was the landlord of the
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respondent. He submits that this admission indicated that the
property in question was jointly held by Rammanohar Pandey,
Parmeshwardayal Pandey and one more brother Shivdayal Pandey
and thus further indicated that the petitioners being the legal heirs
of Rammanohar Pandey were having their rights in the property in
respect of which a decree for specific performance has been
obtained by the respondent against Rammanohar Pandey. He
submits that this issue required adducing of evidence and had the
potential of fundamentally affecting the correctness of the decree
and, therefore, application filed by the petitioners ought to have
been allowed by the trial Court.
4. Learned counsel for the respondent submits that the
decree has been sought to be challenged by the petitioners not
because it has been obtained by fraud but it is an erroneous decree
as according to the petitioner, the petitioners also have their right,
title and interest in the subject property. He submits that even if it
is assumed for the sake of argument that there have been some
admission given by the respondent that he was a tenant of
Parmeshwardayal Pandey that admission would not result in an
inference that even the deceased Rammanohar Pandey through
whom the petitioners are claiming was the joint owner of the
property of which Parmeshwardayal Pandey was the landlord. The
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admission, sought to be relied upon by the petitioners, is not
relevant for the purposes of the suit inasmuch as there has been a
categorical finding rendered by the trial Court that the subject
property of the present dispute was exclusively owned by the
deceased Rammanohar Pandey. He further submits that it is well
settled law that the scope of Section 47 is limited and it does not
allow the Court to go behind a decree. For this submission he relies
upon the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul
Rehman, reported in 1970 (1) SCC 670.
5. Upon perusing the paper book of the writ petition, I find
that there is a great substance in the argument of learned counsel
for the respondent and no merit in the argument of learned counsel
for the petitioners. The admission sought to be drafted in by the
petitioners for appropriate consideration by the executing Court
does not seem to be relevant in this case. There has been no further
admission given by the respondent that even Rammanohar Pandey
was the joint owner of the property of which Parmeshwardayal
Pandey was the landlord. There has been a categorical finding by
the Civil Court that the subject property was exclusively owned by
the deceased Rammanohar Pandey. This can be seen by the finding
recorded by the trial Court in Special Civil Suit No.11/1993,
particularly the finding recorded against issue No.6. The issue No.6
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was to the effect "whether the defendant is the exclusive owner of
the suit house?" and it has been answered by the trial Court in the
term "proved". So, as stated earlier, the said admission would not
be relevant for deciding the question raised by the petitioners.
6. Once it is held that the admission in question is not
relevant for the purposes of application filed under Section 47 of
the C.P.C, it would have to be found that such application cannot be
allowed by the trial Court as what remains would be a challenge to
the decree on the ground that it is erroneous. There is a difference
between the challenge in the nature of decree having been obtained
by fraud and the challenge raised with the support of some points
indicating that the decree is based upon the erroneous assumption
and inferences. The executing Court, has dealt with this aspect of
the matter by relying upon the ratio of the case of Dhurandhar
Prasad Singh vs. Jai Prakash University and others, reported in
2001 AIR 2552, wherein, the Hon'ble Apex Court has held that a
Court executing a decree cannot go behind the decree between the
parties or their representative and must take the decree according
to its tenor. The Hon'ble Apex Court has also held that the scope of
objection under Section 47 of the C.P.C. in relation to executability
of a decree is limited and it can be restricted to only that decree,
which is nullity and not a decree which is erroneous either in law or
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facts. In my view, the executing Court has rightly applied the ratio
of the said case to the facts of the instant case. Even in the case of
Vasudev Modi (supra), a same view has been taken by the Hon'ble
Apex Court when it held that a Court executing a decree cannot go
behind the decree between the parties or their representatives.
7. In the circumstances, I find neither any illegality nor any
arbitrariness in the order impugned in this petition. There is no
substance in the petition and it deserves to be dismissed.
Petition stands dismissed. Rule is discharged. No costs.
JUDGE
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