Bombay High Court
Kundansing S/O. Ramsing Chhanwal vs Sau. Kamla W/O. Ganeshsingh ... on 4 August, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2083 OF 2016
Kundansing s/o Ramsing Chhanwal,
Aged about 38 years,
Occupation - Business,
Resident of Plot No.129, Sector F-1,
N-4, CIDCO, Gurusahni Nagar,
Aurangabad. .... PETITIONER
VERSUS
1) Sau. Kamla w/o Ganeshsingh Rajput,
Aged about 55 years,
Occupation - Household,
Resident of Wakdi, Tahsil - Jamner,
District - Jalgaon (Khandesh).
2) Sau. Bharti w/o Bhavsingh Rajput,
Aged about 47 years,
Occupation - Household,
Resident of Giri Tara Housing Society,
Garkheda, Stadium Road, Aurangabad.
3) Smt. Nyahala (Dnyadala) wd/o
Magansingh Murhade,
Aged about 53 years,
Occupation - Household,
Resident of Neri Road, MIDC Area,
Tahsil and District Jalgaon (Khandesh).
4) Sau. Varsha w/o Shailesh Rajput,
Aged about 43 years,
Occupation - Household,
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Resident of Ahamadnagar, Tahsil
and District Ahamadnagar.
5) Sau. Chhaya w/o Narayan Barwal,
Aged about 43 years,
Occupation - Household,
Resident of Pachora Housing Society,
Tahsil - Pachora, District - Jalgaon
Khandesh.
6) Smt. Chandabai wd/o Ramsing
Chhanwal, Aged about 66 years,
Occupation - Household,
Resident of Vishnuwadi, Tahsil and
District - Buldhana.
7) Sau. Sunita w/o Ravindra Rajput,
Aged about 46 years,
Occupation - Household,
Resident of MHADA Colony,
Opposite Baba Petrol Pump,
Tahsil and District Aurangabad.
8) Sau. Anita w/o Mahipalsing Chanda,
Aged about 43 years,
Occupation - Household,
Resident of Chandol, Tahsil and
District - Buldhana.
9) Smt. Kalpana wd/o Bharatsing Chhanawal,
Aged about 53 years,
Occupation - Household,
10) Shrikant s/o Bharatsing Chhanawal,
Aged about 29 years,
Occupation - Student,
11) Amol s/o Bharatsing Chhanawal,
Aged about 23 years,
Occupation - Agriculturist,
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Respondent Nos.9 to 11 are resident
of Kasampura, Post - Lohara, Tahsil-
Pachora, District - Jalgaon (Khandesh).
12. Sau. Bindiya w/o Sandip Rajput,
(maiden name Ku. Bindiya d/o
Bharatsing Chhanawal), Aged about
27 years, Occupation - Household,
Resident of at Post - Sawada,
C/o. Sandip s/o Ratansingh Rajput,
Tahsil - Bhadgaon & District -
Jalgaon (Khandesh) ....
ig RESPONDENTS
______________________________________________________________
Shri G.L. Agrawal, Advocate for the petitioner,
Shri Abhay Sambre, Advocate for the respondent Nos.1 to 5,
Shri N.R. Bhishikar, Advocate for the respondent Nos.6 to 8,
None for the respondent Nos. 9 to 12.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 4
AUGUST, 2016.
th
ORAL JUDGMENT :
Heard Shri G.L. Agrawal, Advocate for the
petitioner/judgment-debtor and Shri Abhay Sambre, Advocate for the
respondent Nos.1 to 5/decree-holders.
2. As the petitioner and respondent Nos.1 to 5 are contesting
parties, the matter is taken up for final hearing.
Rule. Rule made returnable forthwith.
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3. Smt. Geetabai Mohansing Chhanwal (predecessor of
respondent Nos.1 to 5 and 9 to 12) had filed Special Civil Suit
No.4/2000 against the father and mother of the petitioner, praying for
decree for possession and other ancillary reliefs. The civil suit was
decreed by the trial Court by the judgment dated 28-09-2006. The
decree passed by the trial Court is upheld upto the Hon'ble Supreme
Court, Special Petition for Leave to Appeal No.11670/2015 filed by the
judgment-debtors having been dismissed on 24-04-2015. The
respondent Nos.1 to 5 who are legal heirs of decree-holder, have filed
execution proceedings. The respondent Nos.9 to 12 who are also legal
heirs of the decree-holder are impleaded as opponents in the execution
proceedings.
4. The petitioner/judgment-debtor filed objection in the
execution proceedings on three counts, (i) that the execution
proceedings have been filed by only five out of nine legal
representatives of the decree-holder, and therefore, are not legal and
proper, (ii) that the description of the property shown in the execution
proceedings is not same as in the decree and (iii) that the decree-
holder Nos.6, 7 and 9 have given power of attorney to the decree-
holder Nos.5 and 8 and the description of property in the power of
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attorney is not the same as shown in the execution proceedings.
The learned trial Judge, by the impugned order, has
rejected the objection of the judgment-debtor.
5. As far as the first objection is concerned, it is not disputed
that the decree-holder Nos.1 to 4 (legal heirs of original decree-holder)
are party to the execution proceedings as the opponents, and though
they are served with the notice of execution proceedings, they have not
taken any objection to the execution proceedings. It is not that five out
of nine decree-holders are seeking to execute the decree at the back of
the other four decree-holders. In this situation, the objection as raised
by the judgment-debtor cannot be considered. The situation would
have been different if five out of nine decree-holders sought to execute
the decree at the back of other four decree-holders. The five decree-
holders who have filed the execution proceedings have explained why
the execution proceedings are filed by five out of nine decree-holders
and why the other four are shown as opponents. Though it is argued
that the explanation given by the five decree-holders who have filed
the execution proceedings cannot be accepted, fact remains that the
other four decree-holders are impleaded in the proceedings and
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though they are served, they have not taken any objection. In the facts
of the present case, the judgment given in the case of Valchand
Gulabchand Shah vs. Manekbai Hirachand Shan reported in AIR
1953 (Bom.) 137 relied upon by the learned Advocate for the
petitioner does not assist the petitioner.
6.
As far as the second objection regarding description of
property is concerned, the execution application is amended by the
decree-holders and after amendment the description of the property is
correct and proper, therefore, this objection does not survive.
7. The third objection regarding wrong description of
property in the Power of Attorney also cannot be accepted as
admittedly the execution proceedings are filed by the decree-holder
Nos.6, 7 and 9 also who have given the Power of Attorney. It is
undisputed that the decree-holder Nos.6, 7 and 9 are represented by a
lawyer authorised by them.
8. I do not find any patent illegality or perversity in the
impugned order. The executing Court has not committed any error of
jurisdiction which necessitates interference by this Court in the extra-
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ordinary jurisdiction.
9. Another grievance is made by the petitioner that he is not
given opportunity to lead evidence and on insistence of the decree-
holders possession warrant is issued by the executing Court. On
instructions from the petitioner, who is present in the Court, the
learned Advocate for the petitioner states that he intends to examine
one witness only. In my view, interests of justice would be sub-served
if the executing Court permits the petitioner to examine one witness.
The petitioner assures that the witness will be produced before the
executing Court on the date fixed by the executing Court and if the
petitioner fails to produce the witness, the executing Court may
proceed further and the petitioner will not insist for issuing witness
summons to the witness.
10. Hence, the following order :
(i) The impugned order is maintained.
(ii) If the petitioner produces his witness on the date fixed by
the executing Court, the evidence of the witness shall be
recorded and the cross-examination shall also be
conducted immediately. If the petitioner fails to produce
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the witness on the date fixed by the executing Court, the
executing Court shall proceed in the matter.
(iii) As the order directing issuance of possession warrant is
passed during the pendency of the present petition and as
the petitioner is permitted to examine one witness, the
order passed on 20-06-2016 below Exhibit No.22 directing
issuance of possession warrant is set aside. The trial Court
shall pass appropriate orders after recording of evidence of
witness of the petitioner and after hearing the parties.
(iv) Since the execution proceedings are of 2013, the executing
Court shall dispose the proceedings till 30-09-2016.
With the above directions, the petition is disposed. In the
circumstances, the parties to bear their own costs.
JUDGE
adgokar
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment.
Uploaded by : P.M. Adgokar. Uploaded on : -8-08-2016.
P.A. to Hon'ble Judge.
