Bombay High Court
Digambar Patilba Wagh And Others vs Rukhmanbai Santosh Chinchole And ... on 30 August, 2016
Bench: T.V. Nalawade
W.P. No.2547/2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.2547 OF 2016
1. Digambar s/o Patilba Wagh
Age 65 years, Occu. Agril.,
2. Jagannath s/o Patilba Wagh,
Age 60 years, Occu. Agril.,
3.
Bhanudas s/o Patilba Wagh,
Age 45 years, Occu. Agril.,
All R/o Shekta, Taluka and
District Aurangabad ... PETITIONERS
VERSUS
1. Rukhmanbai w/o Santosh Chinchole
Age 26 years, Occu. Agril.,
R/o Mangrul, Taluka and
District Aurangabad
2. Samindrabai w/o Ramrao Kakde,
Deceased, through her L.Rs.
(Respondent No.3 and 4 herein)
3. Vishnu s/o Ramrao Kakde,
Deceased through his L.Rs.
3a) Padmabai w/o Vishnu Kakde,
Age 52 years, Occu. Household,
3b) Rameshwar s/o Vishnu Kakde,
Age 30 years, Occu. Agriculture,
3a and 3b R/o At Rampur,
Tq. and District Aurangabad
3c) Rukhmanbai w/o Santosh Chinchole
(Respondent No.1 herein)
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W.P. No.2547/2016
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3d) Aruna w/o Subhash Tambe,
Age major, Occu. Household,
R/o Sanjkheda, Taluka and
District aurangabad
4. Kundlik s/o Rammrao Kakde,
Age major, Occu. Agril.,
R/o Mahalpimpri, Taluka and
District aurangabad
(Dismissed as per Court's order
Dt. 29/7/2016)
5. Ganpat s/o Bajirao Ambhore,
Age 50 years, Occu. Agril.,
R/o Ramkheda, Tq. Badnapur,
District Jalna.
6. Gayabai w/o Dhondiba Bidwe
Age major, Occu. Household,
R/o Satona, Tq. Partur,
District Parbhani
(Dismissed as per Court's order
Dt. 29/7/2016)
7. Padmabai w/o Kondiba Bidwe,
Age major, Occu. Household,
R/o Satona, Tq. Partur,
District Parbhani.
8. Mathurabai w/o Gulabrao Shinde,
Age major, Occu. Household,
R/o Ramnagar, Taluka and
District Jalna.
9) Prakash s/o Bajirao Ambhore,
Age major, Occu. Agril.
R/o Ramkheda, Tq. Badnapur,
District Jalna.
10) Bhagubai w/o Dnyandeo More,
Age major, Occu. Household,
R/o Deothana, Tq. Partur,
District Parbhani.
11) Nanibai w/o Uddhavrao Kale,
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W.P. No.2547/2016
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Age major, Occu. Household,
R/o M.I.D.C., Waluj, Taluka and
District Aurangabad
12) Shankar s/o Bajirao Ambhore,
Age major, Occu. Agril.,
R/o Ramkheda, Tq. Badnapur,
District Jalna. .... RESPONDENTS
.....
Shri Ashutosh Kulkarni, Advocate for petitioners
Shri S.A. Adhav, Advocate for R.No.1, 3(A) to 3(D)
Shri S.S. Dixit, Advocate for R.No.5, 7 to 12
.....
ig CORAM: T.V. NALAWADE, J.
DATED: 30th August, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent,
heard both sides for final disposal.
2. The petition is filed to challenge the orders made on
Exh.43 and Exh.1 in Regular Darkhast No.201/2005, which is
pending in the Court of Civil Judge, Senior Division, Aurangabad.
Both the sides are heard.
3. It appears that, present petitioners were defendants
in a partition suit, and the decree of partition has become final.
As there was a decree of partition and the parties are Hindus,
execution proceedings is filed by present petitioner. In the
W.P. No.2547/2016
execution proceedings, the present respondents, the applicants
of application at Exh.53, took objection under the provisions of
Order 21 Rule 97 of the Civil Procedure Code. They contended
that, one sale deed was executed by Muktabai in favour of
Ramrao, husband of Samindrabai and on the basis of said sale
deed, the petitioner was entitled to get the property sold to
Ramrao as successor of Ramrao.
4.
The submissions made and the reasons given show
that, in the suit, Samindrabai and her two sons like Vishnu and
Kundlik were defendants (as defendant Nos.1 to 3). They did not
file written statement. The decree was given in the year 1989
and this Court modified the decree in the year 2012 to make the
share of each branch as one third.
5. The aforesaid circumstances show that, when
Samindrabai, Vishnu and Kundlik, the successors of Ramrao were
there in the suit filed by Ganpat and they did not take the
defence that Ramrao was owner of the property due to sale deed
executed by Muktabai in his favour, when such defence ought to
have been taken in the said matter, it needs to be presumed that
all defence are considered by the Court which gave the decree of
partition. The said decision has become final and the decision is
binding on the successors of Vishnu, the present respondent -
W.P. No.2547/2016
objection petitioner. This Court holds that, it was not correct and
proper on the part of Executing Court to hold that such objection
is tenable. This objection does not fall under Order 21 Rule 97 of
the Civil Procedure Code. It is clear that, the objection
petitioners are making attempt to protract the execution of the
decree. The learned counsel for the present petitioners places
reliance on the case of Shivaji s/o Bhausaheb Bankar Vs.
Jijabai Prabhakar Alwane & ors., reported in 2016(4)
Mh.L.J. 939, in which the scope of Order 21 Rule 97 is
considered by this Court. In view of the law which is already
settled and the facts of the present matter which are quoted, this
Court holds that, the objection itself cannot be entertained.
6. In the result, the orders made by the Executing Court
are hereby set aside and the applications stand rejected. Rule
made absolute.
(T.V. NALAWADE, J.)
fmp/wp2547.16
