Damodhar Malharrao Sapkal Died ... vs Panch Committee Line Galli Beed
2016 Latest Caselaw 1050 Bom

                                            1




                                                                            
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                    
                               WRIT PETITION NO.47 OF 2016

    DAMODHAR MALHARRAO SAPKAL,
    DIED THROUGH LR'S




                                                   
    1. Smt.Narmadabai W/o Damodhar Sapkal,
        Age-72 years, Occu-Household,




                                          
    2. Nanda w/o Ajay Talekar,
        Age-47 years, Occu-Household, 
                               
    3. Sangita D/o Damodhar Sapkal,
        Age-46 years, Occu-Household,
                              
    4. Shivaji S/o Damodhar Sapkal,
        Age-44 years, Occu-Advocate,

    5. Parmeshwar S/o Damodhar Sapkal,
      

        Age-40 years, Occu-Agriculture,
   



    6. Maya D/o Damodhar Sapkal,
        Age-39 years, Occu-Household,

    7. Chaya D/o Damodhar Sapkal,
        Age-38 years, Occu-Household,





    All R/o Karanja Road,
    Beed, Tq. Dist. Beed
                                                                PETITIONERS





    VERSUS 

    PANCH COMMITTEE,
    Line Galli Beed,
    Tq. and Dist. Beed                                          RESPONDENT

Mr.G.K.Naik Thigle, Advocate for the petitioners. Mr.P.P.Dawalkar, Advocate for the respondent.

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( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 31/03/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard by the

consent of the parties.

2. The petitioners are aggrieved by the order dated 07/11/2015

passed by the learned District Judge-2, Beed, by which application

Exh.22 in Misc.Civil Application No.326/2008 has been rejected.

3. The petitioners submit that they are the original defendants in

RCS No.8/1992. Same was decreed by judgment dated 02/09/1993.

The petitioners preferred Reg.Civil Appeal No.48/1994 before the

Appeal Court. By an order dated 10/06/2008, the appeal was

dismissed for want of prosecution. An application for condonation of

delay alongwith an application for restoration of the appeal was filed

before the Appeal Court. By order dated 24/02/2010, the application

for condonation of delay was rejected.

4. It is further submitted that the petitioners, therefore, preferred

WP No.3468/2012 before this Court and by judgment dated

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07/10/2015, the application for condonation of delay was allowed

and the delay was condoned. The Misc.Civil Application

No.326/2008 seeking restoration of RCA No.48/1994, is still

pending.

5. The petitioners in the meanwhile were facing the execution

proceedings in Execution Petition No.11/2009. The Executing Court

by order dated 14/07/2010 issued a warrant of possession which was

challenged before this Court in WP No.10413/2010. By judgment and

order dated 20/04/2015, this Court dismissed the petition and

directed the Executing Court to initiate steps for executing the

warrant of possession forthwith.

6. The petitioners submit that by the impugned order dated

07.11.2015 below Exhibit 22, the Appeal Court declined to stay the

decree. This petition has been moved urgently by the petitioners

considering the public notice dated 22/03/2016 by which the decree

holder intends to create third party interest in the suit property and

is likely to alienate the suit property.

7. Learned Advocate for the petitioners strenuously submits that

eventually if the petitioners succeed in getting the appeal restored

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and further succeed in the appeal itself, there is every likelihood that

the decree would be quashed and set aside. As such, if third party

interest is created or if there is any alienation of the suit property, an

irreparable harm would be caused to the petitioners.

8. It is further submitted that the Appeal Court should have

stayed the decree and should have granted interim protection to the

petitioners so as to ensure that the property is neither alienated nor

damaged. Reliance is placed upon the judgment of the Hon'ble

Supreme Court in the matter of Maharwal Khewaji Trust (Regd.)

Faridkot Vs. Baldev Dass (2004) 8 SCC 488. It is contended that the

Apex Court has laid down the law that alienation or transfer of the

property which is likely to lead to a loss or damage, should be

prevented if a party may ultimately succeed in a matter. Multiplicity

of proceedings should be avoided. It is, therefore, prayed that the

respondent be prevented from alienating the property and executing

the decree dated 02/03/1993 delivered in RCS No.8/1992.

9. Mr.Dawalkar, learned Advocate appearing on behalf of the

respondent opposes the petition. Contention is that after the decree

was passed, the petitioners filed their Regular Civil Appeal

No.48/1994. No orders under Order 39 Rule 1 were sought. The

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appeal was kept in a dormant state. Eventually, the appeal got

dismissed in default on 10/06/2008, which is after 14 years of the

institution of the appeal. It is further submitted that as on date the

appeal has not been restored. Delay that was caused in filing the

Misc. Application for restoration was condoned by this Court. The

application for restoration is yet to be decided.

10.

It is further stated that this Court by its judgment dated

20/04/2015 has directed the Executing Court to initiate appropriate

steps to execute the warrant of possession forthwith. In this

backdrop, the learned Advocate submits that no injunctory orders

could be passed against the decree holders when the petitioners have

failed to acquire any such order from the Appeal Court in the last two

decades. He, therefore, prays for the dismissal of this petition with

costs.

11. I have considered the submissions of the learned Advocates as

have been recorded hereinabove.

12. There is no dispute that the decree dated 02/09/1993 has

been challenged by the petitioner in RCA No.48/1994 which has been

dismissed in default. There is no dispute that the petitioners have not

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pressed any application under Order 39 Rule 1 of the CPC seeking a

stay to the decree pending the appeal. From 1994 till 10/06/2008,

in a period of 14 years, the petitioners did not seek injunctory orders

from the Appeal Court. The fact that the petitioners did not diligently

pursue the appeal proceedings, led the appeal Court to dismiss the

appeal in default.

13.

The decree passed by the Trial Court reads as under :-

"1. The suit of the plaintiff is decreed with costs.

2. The defendant is hereby directed to remove construction of three shop premises in suit portion A, as shown in the map annexed with plaint and that he is also directed to give vacant

possession of suit portion A to the plaintiffs within three months

from the date of this order.

3. The defendant is also hereby directed to remove pillars erected by him in suit portion B as shown in the map annexed

with plaint within three months from the date of this order.

4. An enquiry be held under Order 20 Rule 12 of CPC in respect of future mesne profits.

5. Decree be drawn accordingly."

14. The warrant of attachment of the property was assailed before

this Court in WP No.3460/2012. This Court considered the above

facts and concluded that the appeal has been dismissed in default

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and the same is yet to be restored. Considering the law applicable,

this Court dismissed the petition filed by the petitioners by observing

in paragraph Nos. 11, 12 and 13 as follows :-

"11 If we go through the observations made by the executing

Court, particularly while dealing with application Exh.19, the executing Court was alive to the fact that the appeal of the judgment debtors was twice dismissed in default. This shows

the negligent/delaying attitude on the part of petitioners and

the petitioners wanted to take benefit of their own wrong by citing cause of pendency of their proceedings in relation to

appeal to appeal against the decree under execution. The executing Court has taken into account all facets of the objections raised by the judgment debtors and noticed that the

objections are not bona fide. It is required to be noted that the executing Court cannot travel beyond the decree in question and

the perusal of the issues, the observations and the verdict of the trial Court reflects great clarity in identifying the suit property in

the background of (specifications) in the suit claim. Once the encroachment was specifically established in the suit, raising objection again and again and grant of such objection at the behest of judgment debtors amounts to opening the ponder box.

The executing Court, while deciding the Exh.19 and Exh.34 has considered the claim for appointing of Court Commissioner under Order XXVI, Rule 9 of the code of Civil Procedure and for appropriate reasons rejected the same. In my opinion, the reasons recorded by the learned executing Court while rejecting the objections Exh.19 and Exh.34 preferred by the present

khs/March 2016/47-d

petitioners has taken into account the very decree i.e. under execution and specifications of the suit property mentioned

therein. The approach of the petitioners, particularly in the background of twice dismissal of their appeal in default, then taking those proceedings before this Court, is nothing but an

abuse of process of law. I have perused the judgment delivered by the learned trial Court on 2 nd September 1993 in Regular Civil Suit No.8 of 1992 and noticed that the same contains

utmost clear specifications about the suit property.

12 In view of above, the writ petition preferred by the present

petitioners is hereby dismissed with costs.

13 The executing Court is directed to take appropriate steps

to execute the warrant of possession forthwith."

15. The respondent has filed an affidavit in reply on 27/01/2016 in

this petition. It is specifically stated on oath that pursuant to the

orders of this court dated 20/04/2015, the decree dated 02/09/1993

has been executed and the possession of the suit property has been

handed over to the respondent. It is, therefore, submitted that the

public notice has been published since the execution of the decree

has already taken place and the property is now in the possession of

the respondent.

khs/March 2016/47-d

16. It is further contended that any embargo being created on the

respondent would amount to taking away a legal right of the decree

holder.

17. It is evident that the warrant of possession has been executed

in the light of the orders of this Court and after considering the fact

that there was no stay on the decree. The petitioners have allowed

their appeal to be dormant for 14 years. The contention by the

petitioners that it did not have any apprehension about alienation of

the property, is fallacious. Once the decree was awarded in favour of

the original plaintiffs, the threat of alienation of the property always

loomed over the petitioners/defendants. It is beyond comprehension

that the petitioners had no apprehension of alienation of the property

for 14 years.

18. Notwithstanding the above, after the dismissal of the appeal in

default, the petitioners were in slumber. They have filed the

application for restoration beyond limitation and the delay was finally

condoned by this Court. The appeal is yet to be restored. It would

therefore be a matter of speculation as to whether the restoration

application would be allowed and if so, whether the appeal would be

allowed.

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19. The reliance placed upon the judgment of the Hon'ble Supreme

Court in the case of Maharwal Khewaji Trust (Supra) is misplaced.

In the said matter, the application for injunction under Order 39 Rule

1 and 2 of the CPC was refused by the Civil Court as well as by the

Appeal Court. The civil suit was pending. The High Court did not

grant injunction to the said appellant. The Hon'ble Supreme Court

considered the grievance of the plaintiff and prevented the change in

the nature of the property which was put up for construction. In the

instant case, the suit has already been decreed and this Court has

directed the Executing Court to execute the warrant of attachment

forthwith. The said order of this Court was assailed before the Apex

Court and the Special Leave to Appeal was dismissed after condoning

the delay on 26/10/2015.

20. Considering the effect of the fact situation as above, I do not

find that the respondent deserves to be restrained from dealing with

the property in the manner as desired. However, since the

proceedings in relation to the restoration of the appeal is pending,

the respondent, if proceeds pursuant to the public notice dated

22/03/2016, shall ensure that the prospective purchaser on any

third party which may have rights created in the suit property, would

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be made fully aware of the pending proceedings and the pendency of

the said proceedings shall find place in any sale deed if it is sought to

be registered or executed.

21. Needless to state, the Misc.Civil Application No.326/2008 shall

be decided by the learned Appeal Court on its own merits considering

the grounds set out for seeking restoration.

22. With the above observations, this petition is disposed of. Rule

is discharged.

( RAVINDRA V. GHUGE, J.)

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