Khanambi Nazir Ahemed (Dead ... vs Mohmed Raizwanul Haq S/O. Mohed ...
2016 Latest Caselaw 2310 Bom

       wp367.16.odt                                                                           1/4   



                  
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                              
                               NAGPUR BENCH, NAGPUR.




                                                      
                              WRIT PETITION NO. 367 OF 2016

          1. Khanambi Nazir Ahemed also
             (Dead leaving behind Lrs. P.2 to P.7)




                                                     
          2. Jamir Ahmed Nazir Ahmed, aged 48 yrs.,

          3. Amir Ahmed Nazir Ahmed, aged 38 yrs.,




                                        
          4. Munir Ahmed Nazir Ahmed, aged 36 yrs.,

          5. Samer Ahmed Nazir Ahmed, aged 34 yrs.,
                             
          6. Halim Afroz D/o Nazir Ahmed, aged 49 yrs.,
                            
          7. Salma Afroz D/o Nazir Ahmed, aged 47 yrs.,

              all aged - major, occp. Business, r/o Hamza Plot,
              Old City, Akola, Tq. & Distt. Akola.
      

              No. 2, 4 to 7 by Power of attorney 
              Petitoner No.3.           ::          ....  PETITIONER
   



                                            L.R's of J. Dr.1 Nazir Ahmed Deft. 1 in suit.

                                       //  VERSUS //





          1. Mohmed Rizwanul Haq s/o Mohmed Mobinul Hq,
             aged 45 yrs., Occup. Business,

          2. Mohmed Faizanul Haq s/o Mohmed Mobinul Haq, 
             aged 44 years, Occp. Business.





          3. Smt. Mahe Anwar Wd/o Mobinul Haq
             aged 69 yrs., Household,

          4. Miss, Saheba @ Jeba d/o Mobinul Haq,
             aged 43 years,

              All r/o Haq Manzil, Mominpura, At Post,
              Tah. & District Akola. (....Orig, plff./D. Hr.)

          5. Shaikh Jalil S/o Shaikh Abed,



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           aged 67 yrs., Motor Mechanic,
           R/o Hanuman Mandir, Ratanlal Plots Road,




                                                                                
           At Post Tah. & Distt. Akola.
           (...Org. Deft.2/J.Dr.2)::                     .... RESPONDENTS




                                                        
     ______________________________________________________________
                   Shri B. N. Mohta, Advocate for petitioners.  
               Shri R. A. Jain, Advocate for respondent Nos. 1 to 4.
     ______________________________________________________________




                                                       
                                  CORAM : S. B. SHUKRE, J.

DATED : 05 MAY, 2016

ORAL JUDGMENT :

None for respondent No.4.

Heard. Rule, made returnable forthwith. Heard finally by

consent.

2. The title of the suit, Regular Civil Suit No. 107 of 2002,

shows that the suit has been filed against two defendants and in this

petition we are concerned with the name of defendant No.1. Defendant

No.1 has been shown as, "Nazir Ahmed s/o Bashir Ahmed". The

judgment and decree, however, has been passed against defendant

No.1 being shows as, "Nasir Ahmed s/o Bashir Ahmed". The execution

application (Exh.1) as amended up to date however shows that the

proceedings are initiated against Nazir Ahmed Bashir Ahmed

(deceased) and his legal heirs. That is why the petitioner filed

objection vide his application at Exh.46 that such a decree cannot be

executed against the petitioners.

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3. The objection, in my opinion, has been rightly taken by the

petitioners. The decree has been passed against the person whose

name is shown therein as, "Nasir". This might have occurred on

account of a typographical error in the judgment and decree. But, the

fact remains that an error apparent on the face of the record is there

and, therefore, unless that error is corrected in accordance with law,

no execution proceedings could have been initiated and if initiated,

could not have been proceeded further. The learned Judge of the

Executing Court has gone wrong in rejecting the objection taken in this

behalf and also the application of the petitioner vide Exh.56 for grant

of permission to lead evidence in the matter. Such an order, affects the

rights of the petitioner, as contended by her vide her objection at

Exh.46. In the circumstances, I am inclined to allow this petition to the

extent the impugned order affects the rights of the petitioner.

Accordingly, the petition is allowed and the

impugned order is quashed and set aside to the extent it

affects the rights of the petitioner as contended by her in

her applications vide Exhs. 46 and 56.

The matter is remanded back to the Executing Court

for its fresh consideration in the light of the observations

made herein above.

Meanwhile, if any review application is filed by

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respondent Nos. 1 to 4 for correcting the error in the

judgment and decree, same shall be disposed of within a

period of two months by the concerned Court, in

accordance with law and till that time the execution

proceedings may be kept in abeyance.

Rule is made absolute in the above terms. No costs.

JUDGE

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