Bombay High Court
Mohamed Khalil Mohamed Issac ... vs Navneet Kumar Hanumanprasad ... on 16 April, 2016
Bench: A.S. Chandurkar
sa340.14.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.340 OF 2014
APPELLANT: Mohamed Khalil Mohamed Issac
Lohar, aged 34 years, Occ: Business
-VERSUS-
RESPONDENTS: 1. Navneet Kumar Hanumanprasad
Bajoriya, aged 55 years, Occ:
Business, Resident and Post Bori
Arab, Taluka Dharva, District
Yeotmal.
Dead 2. Shakeela Bano W/o Amin Ansari
ig through Lr:
Shabina Bano Amin Ansari, Aged
about 30 years, Occ. Housewife, R/o
C/o Mohd. Ibrahim Yakub Lohar
(Chauhan) Main Road, Near State
Bank of India, Multai, Dist. Betul
(M.P.).
3. Nizamuddin S/o Badruddin Lohar,
aged about 65 years, Occ: business,
R/o Shani Mandir Chowk, Lohar Line,
Sadar Chowk, Yeotmal.
Shri S. R. Deshpande, Advocate for the appellant.
Shri A. V. Bhide, Advocate for the respondent No.1.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATED: 16
th APRIL, 2016.
ORAL JUDGMENT :
1. Heard.
2. Admit on the following substantial question of law:
Whether the trial Court was justified in holding that the
sa340.14.odt 2/4
appeal filed by the present appellant challenging the rejection of the
objection to the execution of the decree for possession was not
maintainable under provisions of Order XXI Rule 103 of the Code of
Civil Procedure, 1908 (for short, the Code).
3. With the consent of the learned Counsel for the
parties, the appeal is taken up for final hearing.
4. The respondent No.1 is the decree holder in Regular
Civil Suit No.330/1988 which was decreed on 31-10-1991 by
passing a decree for possession. This decree for possession was
sought to be executed by filing Regular Darkhast No.31/2011.
The present appellant filed an application under Section 47 of the
Code raising objection to the execution of the decree. Three other
applications also came to be filed by the appellant. These
applications were rejected by the executing Court by order dated
26-3-2013. Being aggrieved, the appellant had filed Writ Petition
No.2020/2013. By order dated 12-4-2013, this Court held that the
remedy for challenging the said orders by filing an appeal as
provided under Order XXI Rule 103 of the Code was available. On
that ground, the writ petition came to be dismissed. However, the
appeal filed by the appellant was not entertained by the appellate
Court on the ground that it was not maintainable. Hence, this
second appeal.
sa340.14.odt 3/4
5. Shri S. R. Deshpande, learned Counsel for the
appellant submitted that the appellant had raised objection to the
execution proceedings by filing an application under Section 47 of
the Code. As the said application was rejected, the appeal was
maintainable under provisions of Order XXI Rule 103 of the Code.
He submitted that this position was clarified by order dated 12-4-
2013 in Writ Petition No.2020/2013. He, therefore, submitted that
the appellate Court ought to have entertained the appeal and
decided the same on merits.
6. Shri A. V. Bhide, learned Counsel for the decree holder
submitted that despite having decree in his favour, the execution
was being delayed on one count or the other. He submitted that
there was no merit in the objection raised to the execution of the
decree. He, therefore, submitted that the second appeal does not
deserve to be entertained.
7. It is not in dispute that the appellant had filed four
applications raising various objections to the execution of the
decree passed in favour of the respondent No.1. As the said
applications were rejected on 25-3-2013, the appellant had the
remedy of challenging the same by filing an appeal under
provisions of Order XXI Rule 103 of the Code. Said position was
clarified by order dated 12-4-2013 in Writ Petition No.2020/2013.
sa340.14.odt 4/4
The appellate Court instead of entertaining the appeal on merits
held that the same was not maintainable. This conclusion of the
appellate Court is contrary to provisions of Order XXI Rule 103 of
the Code. Hence, the substantial question of law is answered by
holding that the appellate Court in view of the provisions of Order
XXI Rule 103 of the Code ought to have entertained the appeal
filed by the appellant on its own merits.
8. In view of aforesaid, the following order is passed:
ig The order dated 3-5-2013 in Regular Civil Appeal
No.33 of 2013 is set aside.
(2) The proceedings in R.C.A. No.33/2013 are restored.
The appellate Court shall decide the same in accordance with law
and by the end of July, 2016.
(3) The second appeal is allowed in aforesaid terms. No
costs. All pending civil applications also stand disposed of.
JUDGE
//MULEY//
