Bombay High Court
Vyankat Govind Haridas vs Shriram Govind Haridas And Others on 23 June, 2016
Bench: S.P. Deshmukh
1 WP-2219.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 2219 OF 2016
Vyankat Govind Haridas
Age: 62 years, Occu. Agri.,
R/o. Pangaon, Tal.Renapur,
Dist. Latur. ... Petitioner
(Ori.Objection Petitioner)
Versus
1) Shriram Govind Haridas
Age: 60 years, Occu. Agri.,
R/o. Pangaon, Tal. Renapur,
Dist. Latur.
2) The State of Maharashtra
Through its Collector, Latur,
Dist: Latur
3) The Executive Engineer,
Medium Project, Latur,
Tal and Dist: Latur. ...Respondents
(R.1: Ori. Decree Holder
R.2 & 3 Judgment Debtors)
.....
Mr. V. D. Gunale, Advocate for the petitioner
Mr. V. D. Hon, Senior Advocate i/by Mr. A. V. Hon, Advocate
for respondent No.1
Mr. S. K. Tambe, Assistant Govt. Pleader for respondent No.2
.....
CORAM : SUNIL P. DESHMUKH, J.
DATE : 23rd JUNE, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard with
consent of learned advocates for the parties, finally.
2 WP-2219.16.doc
2. The petitioner, purportedly, aggrieved by rejection on
12th January, 2016, of his request to adduce evidence under
application Exhibit-21 in Special Regular Darkhast No. 221 of
2012 pending before the 3rd Joint Civil Judge, Senior Division,
Latur, is before this court.
3. The facts of the matter can briefly be referred to that,
petitioner and respondent No.1 and one Jagannath (who is
not party to the writ petition), are three real brothers. They
are the sons of Govind and Sitabai Haridas. While land
acquisition proceedings were initiated, some land holdings
were in the name of petitioner and his two other brothers,
and accordingly, the proceedings have been prosecuted,
which culminated into the award by Special Land Acquisition
Officer and further enhanced award by reference court.
4. While respondent No.1 had been prosecuting aforesaid
execution petition for realisation of the enhanced award
amount, the petitioner had lodged some proceedings in the
executing court, bearing Exhibit-12, objecting to the payment
of entire award amount to respondent No.1. This objection
had been lodged, contending that partition among the
brothers and the parents had taken place in 1999, which
3 WP-2219.16.doc
makes reference to that the land acquisition compensation be
shared equally by all the three brothers referred to above,
and that was unlikely to happen as respondent No.1 had
shown reluctance to be bound by the partition-deed and as
such the objection petition has been lodged. It is with
reference to this objection at Exhibit-12, an application had
been moved by petitioner at Exhibit-21 seeking leave from
the court to allow him to lead evidence in respect of the
contended partition, which leave had been refused to be
granted by the court under impugned order.
5. Mr. Gunale, learned counsel for the petitioner submits
that, having regard to the undisputed events and the
partition, which he relied on, the application, ought to have
been considered properly and the petitioner ought to have
been allowed to lead evidence. He submits that executing
court under section 47 of the Code of Civil Procedure, 1908,
was required to be moved in this respect as the executing
court is empowered to decide the dispute about the
representation.
6. Learned counsel for the petitioner further purports to
support his submissions by citing two judgments - one in the
4 WP-2219.16.doc
case of Gangabai Gopaldas Mohata vs.Fulchand and others reported
in 1997(3) MH.L.J. 561. Perusal of the judgment would show
that the context of said matter with which petitioner had been
concerned, has no nexus to the present factual situation.
7. Another decision of this court relied on by Mr. Gunale is
in the case of Sushila Sadanand Borkar d/o Sadanand Ladu Borkar
and others vs. Maria Exaltacao Vaz alias Elasso Vaz and another
reported by Manupatra, a copy of which has been tendered
across, shows that it too does not have any nexus to factual
position and same relates to immovable property and not to
the subject matter under impugned order on Exhibit-21.
8. Learned senior advocate Mr. Hon appearing on behalf of
respondent No.1 submits that, as a matter of fact lodging of
objection before the executing court itself is untenable and
further refers to that the impugned order sufficiently takes
care of the interest of the petitioner, in the way in which the
same can be taken care of.
9. He further submits that as has been observed above
that the decisions relied on, have no relevance in the present
controversy. He further purported to point out that Section 47
shows pre-requisite for invoking it is that the person should
5 WP-2219.16.doc
be party to the lis / suit and that primary requirement does
not get satisfied in the present matter. The case sought to be
contended by petitioner, has no relevance to section 47 and
much less to sub-section (3) thereof.
10. Under the circumstances, no indulgence under the
extra-ordinary powers of this court is at all required in the
present matter.
11.
Section 47 of the Code of Civil Procedure, which reads
as under;
" 47. Question to be determined by the Court executing decree
- (1) All questions arising between the parties to the suit in
which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the decree and not by
a separate suit.
[ ]
(3) Where a question arises as to whether any person is or
is not the representative of a party, such question shall, for the
purpose of this section, be determined by the Court."
12. The proceedings of acquisition as far as the present
award is concerned, had been between the respondent No.1
and the State and petitioner had not at all been a party to the
same. It does not appear to be a case that the situation would
be covered under sub-section 3 of Section 47 of the Code of
Civil Procedure. In the circumstances, it would not have any
6 WP-2219.16.doc
implication. As such, no fault can be found in the order
impugned.
13. Having regard to above, I am not inclined to give any
indulgence requested by the writ petitioner.
14. Writ petition, as such, stands dismissed. Rule is
discharged.
15.
However, it would be open for the petitioner, to
prosecute other remedies as may be available.
( SUNIL P. DESHMUKH, J. )
sms
