Laxmanrao S/O Arjunrao Bund vs Shashikala W/O Bhayyaji Armarkar ...
2016 Latest Caselaw 2721 Bom

                  wp5141.15.odt                                                                                       1/7

                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             NAGPUR BENCH : NAGPUR.




                                                                                                                 
                                                   WRIT PETITION NO.5141 OF 2015




                                                                                 
                   PETITIONER:                                Laxmanrao   S/o   Arjunrao   Bunde,
                                                              Aged about  78 years,  Occ:  Business,
                   (Assignee of Decree
                                                              Resident   of   Plot   No.530,   Anand
                   Holder)        
                                                              Nagar,   Juni   Shukrawari   Road,
                                                              Nagpur.




                                                                                
                                                                                                                   
                                                                    -VERSUS-

                   RESPONDENTS:                               1. Shashikala   W/o   Bhayyaji   Armarkar,




                                                                   
                                                                 R/o   Nikalas   Mandir   Road,   Itwari,
                   (Ori. Judgment 
                                                                 Nagpur
                   Debtor)
                                    ig                        2. Madhukar S/o Vitthalrao Idapati,
                                                              3. Dinesh S/o Vitthalrao Idapati Naresh
                                                                     (Objectors before Executing Court)
                                  
                                                              Nos.   2   and   3   are   R/o   Plot   No.213,
                                                              Lendhra, Ramdaspeth, Nagpur.
                                                                                                                                    
      

                  Shri S. V. Sohoni, Advocate for the petitioner.
                  Shri K. B. Ambilwade, Advocate for respondent Nos.2 and 3.
   



                  ----------------------------------------------------------------------------------------------------
                                                                             CORAM: A.S. CHANDURKAR, J.

DATED: 10 th JUNE, 2016.

ORAL JUDGMENT :

1. In view of notice for final disposal issued on

16-9-2015, the learned Counsel for the parties have been heard at

length.

2. The petitioner is aggrieved by the order passed by the

executing Court below Exhibits-107 and 108 dated 5-8-2015 to the

extent the prayer made for striking out the issue that was framed

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below Exhibit-99 has been rejected.

3. The facts relevant for considering the challenge herein

are that one Baijabai was the owner of the suit property. She sold

the same by registered sale deed to one Shashikala on 16-3-1970.

On 4-3-1977, said Shashikala entered into an agreement for selling

the said property to one Shamsunder Jaiswal. As the sale deed

was not executed, said Shamsunder filed Regular Civil Suit

No.1110/1977 for specific performance of the agreement. The suit

was decreed on 8/2/1979 after which the original plaintiff filed

Regular Darkhast No.361/1979 for executing the decree. During

pendency of the said proceedings, the original plaintiff-

Shamsunder executed a deed of assignment in favour of the

present petitioner. The name of the petitioner was thereafter

substituted in the place of the decree holder. When the decree was

put to execution, the respondent nos.2 and 3 herein raised an

objection by filing an application below Exhibit-45 as well as

another application below Exhibit-95 under provisions of Order

XX1 Rule 35 of the Code of Civil Procedure, 1908 (for short, the

Code). In the execution proceedings, the executing Court on

27-4-1998 framed four issues below Exhibit-107. Thereafter, on 9-

2-1999, the executing Court recalled the warrant of possession

issued earlier by allowing the objections raised by the respondent

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Nos.2 & 3. Regular Civil Appeal No.320/1999 preferred by the

petitioner was dismissed on 7-8-2006. The petitioner then filed

Second Appeal No.77 of 2007. By the judgment dated 19-3-2014,

the second appeal was disposed of by setting aside the orders

passed in the Darkhast proceedings. The executing Court was

directed to consider the applications filed by the present petitioner

under provisions of Order XXI Rule 97 of the Code below Exhibit-

70. Prayer was made for removing the obstruction that was

caused by the respondent Nos.2 & 3. The respondent Nos.2 & 3

filed their objection to the aforesaid application. On 19-6-2015,

the executing Court framed an issue at Exhibit-99 which reads

thus:

1) Whether objectionist/Non-applicant Nos.2 & 3 have title to the suit property?

The petitioner then moved an application below Exhibit-107 for

striking out said issue on the ground that the issues already framed

below Exhibit-107 on 27-4-1998 were sufficient for deciding the

objection. The respondent nos.2 & 3 moved an application below

Exhibit-108 in which it was prayed that further issues be framed in

the execution proceedings.

4. The Executing Court decided both the applications and

by order dated 5-8-2015 rejected the same. Being aggrieved, the

petitioner has filed the present writ petition.

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5. Shri S. V. Sohoni, the learned Counsel for the

petitioner submitted that the issues already framed below

Exhibit-107 by the Executing Court covered the controversy in

question and there was no reason to frame an additional issue

below Exhibit-99. According to him, the objectors had examined

about ten witnesses and the petitioner had examined one witness.

The objectors had also filed a pursis closing their evidence on

16-11-1998. He, therefore, submitted that as the evidence was

already available on record, it was not necessary to again frame

the issue with regard to the title of the objectors. According to

him, issue Nos.1 and 2 that were framed below Exhibit-107 were

only liable to be tried.

6. Shri K. B. Ambilwade, learned Counsel for the

respondent Nos.2 and 3 supported the order in so far as the

application below Exhibit-107 was rejected. He submitted that in

view of the judgment in the second appeal, the petitioner had filed

an application under Order XXI Rule 97 of the Code to which reply

had been filed by the objectors. The respondent Nos.2 and 3 had

legal title to the property in question and therefore, in terms of the

provisions of Order XXI Rule 101 of the Code, the title was

required to be decided in these proceedings. He submitted that

the evidence which was recorded was pursuant to the applications

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below Exhibits 45 and 95 that were initially filed by the said

respondents. He placed reliance on the judgment of the Hon'ble

Supreme Court in Brahmadeo Chaudhary Vs. Rishikesh Prasad

Jaiswal and another (1997) 3 SCC 694 to urge that all questions of

title were required to be decided in proceedings under Order XXI

Rule 97 of the Code. He, therefore, submitted that there was no

merit in the writ petition and the same was liable to be dismissed.

7. I have heard the respective Counsel for the parties at

length. The record indicates that initially the Executing Court

entertained the applications below Exhibits 45 and 95 that were

filed by the respondent Nos.2 and 3. Though the warrant of

possession which was issued earlier was recalled, these orders

were set aside in Second Appeal No.77 of 2007. This Court

directed the application preferred by the petitioner under Order

XXI Rule 97 of the Code to be decided expeditiously. It is

thereafter that the petitioner filed a fresh application for removal

of obstruction caused by the said respondents. In reply to said

application, the respondent Nos.2 and 3 claimed title to the suit

property. In that backdrop, the executing Court on 19-6-2015

framed the issue with regard to title to the suit property.

8. In Bramhadeo Chaudhary (Supra), the Hon'ble

Supreme Court while considering the provisions of Order XXI Rule

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97 to Rule 103 of the Code has observed that the procedure

contemplated therein is in the nature of complete code and that

the intention is that the grievances of the parties should be finally

resolved in the execution proceedings once and for all. It is to be

noted that the proceedings under Order XXI Rule 97 of the Code

were directed to be considered in the light of the judgment in

Second Appeal No.77 of 2007. Pursuant thereto a fresh application

under Order XXI Rule 97 of the Code has been filed by the

petitioners which is being resisted by the respondent Nos.2 and 3.

The executing Court in this background, therefore, found it

necessary to frame the issue as regards the title of the respondent

Nos.2 and 3 as per the oder below Exhibit-99. This was done after

considering the substantial question of law that was answered in

the second appeal. Even while passing the impugned order below

Exhibit-107, the executing Court has kept this aspect of the matter

in mind.

9. As regards the contention on behalf of the petitioner

that as the issues were already framed below Exhibit-107 and the

parties had led their evidence, it is to be noted that this exercise

was pursuant to the applications below Exhibits 45 and 95 that

were filed by the respondent Nos.2 and 3. Though it is a fact that

issue No.1 framed earlier refers to the right of the objectors to

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obstruct the execution, considering the judgment of this Court in

Second Appeal No.77/2007, the application that was directed to

be considered is the one filed by the petitioner under Order XXI

Rule 97 of the Code. Thus, in aforesaid background, I do not find

that the executing Court committed any error in rejecting the

application below Exhibit-107. Moreover, rejection of said

application cannot be said cause any prejudice to the petitioner

except on the aspect of delay in the execution proceedings. That

aspect can be taken into consideration by directing the executing

Court to expedite the proceedings.

10. In view of aforesaid discussion, I do not find any case

made out to interfere in the writ jurisdiction. However, as the

Darkhast proceedings are filed in the year 1979, the proceedings

before the executing Court are expedited. The executing Court

shall decide the proceedings as expeditiously as possible and by

the end of September, 2016. The executing Court shall not permit

the parties to seek unnecessary adjournments. The proceedings

shall be decided on its own merit without being influenced by the

observations made herein above. The writ petition is disposed of

with no order as to costs.

JUDGE

//MULEY//