Mahendra S/O. Gangashanakr ... vs Narendra S/O. Akheraj Shrimali ...
2016 Latest Caselaw 6784 Bom

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




                                                                              
                                        WRIT PETITION NO. 6915 OF 2015

                 (1) Mahendra S/o Gangashanakr Shrimali, 
                       Aged about 62 years, 




                                                                             
                       Occupation : Household
                 (2) Vasant S/o Gangashanakr Shrimali,
                       Aged about 52 years, 
                       Occupation : Business




                                                               
                 (3) Jugalkishore S/o Gangashanakr Shrimali
                                           
                       Aged about 30 years, 
                       Occupation : Business
                       All residents of Sakakrsath, 
                                          
                       Amraoti, Tah. & Dist. Amraoti.                                          ... Petitioners

                        // VERSUS //
                   

                 (1) Narendra S/o Akheraj Shrimali (Dave)
                       Aged about 55 years
                



                 (2) Santosh S/o Akheraj Shrimali (Dave)
                       Aged about 47 years 
                 (3) Mahesh S/o Akheraj Shrimali (Dave)





                       Aged about 45 years
                 (4) Omprakash S/o Akheraj Shrimali (Dave)
                       Aged about 35 years
                 All residents of Kashi Vishwanath 





                 Mahadeo Temple, Sakkarsath, Amravati, 
                 Tah. & Distt. Amravati. 
Amended as per
 Court's order         All Respondents 1 to 4 are R/o 
dtd. 26.7.2016         Kolhatkar Colony, Amraoti.                                           ... Respondents
                 -------------------------------------------------------------------------------------------------
                 Mrs. Ketki Jaltare-Vaidya, Advocate for the petitioners
                 None for the respondents
                 -------------------------------------------------------------------------------------------------




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                                              CORAM :  PRASANNA B. VARALE, J.

                                               DATE    : 30-11-2016.

    ORAL JUDGMENT




                                                        
                    Rule.  Rule made returnable forthwith.  

2. Heard Mrs. Ketki Jaltare-Vaidya, learned counsel for the

petitioners.

3.

None appears for the respondents. Perusal of the record

shows that on 22-12-2015, notice for final disposal was issued by this

Court. Respondents are duly served. This Court on 26-8-2016 found

that in spite of the respondents duly served, none appeared for the

respondents though notice for final disposal was issued, as such, by

giving one more opportunity, the petition was adjourned and it was

made clear that if none appears for the respondents on next date, the

petition would be heard and disposed of on its own merits.

4. Mrs. Jaltare-Vaidya, learned counsel for the petitioners

submitted that the order impugned in the present petition is clearly

unsustainable on more than one ground. It was submitted by the

learned counsel for the petitioners that the petitioners instituted suit

in the year 1988 seeking the reliefs of permanent injunction and

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mandatory injunction. The suit was decided by the competent Court

in the year 1995 and the same was partly decreed i.e. by granting

permanent injunction in favour of the petitioners-plaintiffs while

rejected the prayer for mandatory injunction. Being aggrieved by the

said order, the appeal was filed by the petitioners. The appellate

Court maintained the judgment and decree of the Court below. The

petitioners approached this Court by presenting second appeal.

Learned counsel for the petitioners invited my attention to the parties

of the second appeal i.e. the appellants and the respondent nos. 1 to 5

as well. The respondent no. 1 Akheraj s/o Ramlal Shrimali (Dave)

who was the father of respondent nos. 1 to 4 in the present petition

and respondent nos. 2 to 5 in the second appeal filed before this

Court. It was further submitted by the learned counsel that this Court

by framing the substantial questions of law and on consideration of

the material before the Court and on hearing the parties found that

the lower Court committed an error as well the lower appellate Court

passed a cryptic judgment dismissing the appeal. It was pointed out to

this Court that the material was lying for last 20 years by way of

certain photographs. This Court allowed the second appeal and the

judgment and decree dated 23-8-1995 passed by 3 rd Joint Civil Judge

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Junior Division, Amravati in Regular Civil Suit No. 701/1998 and

confirmed by judgment dated 31-10-2001 by Joint District Judge,

Amravati in Regular Civil Appeal No. 244/1995 was modified to the

extent that the respondents-defendants were directed to remove their

entire goods and articles kept in gunny bags, wooden boxes, table and

chair from the ground floor of the temple of Kashi Vishwanath and

further the respondents-defendants and their servants and agents were

permanently restrained from keeping any of the articles in any portion

of the ground floor in the temple premises. This Court directed the

respondents-defendants to undertake the exercise within stipulated

period of one month from the date of the order. This Court further

directed the respondents-defendants to pay compensatory costs to the

tune of Rs. 10,000/- to the appellants. The petitioners then initiated

execution proceedings. The copy placed on record at page no. 17

shows that the petitioners-decree holder sought for execution from the

respondent nos. 1 to 4, the judgment debtors along with Akheraj

Ramlal Shrimali (Dave), judgment debtor no. 1. The respondent no. 2

in the present petition and judgment debtor in the execution

proceedings, viz., Santosh S/o Akheraj Shrimali (Dave) filed the

application/objection under Section 47 read with Section 151 of the

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Civil Procedure Code seeking declaration of the nullity of decree. It

was submitted in the application/objection that though the decree

holders were aware of the fact that judgment debtor no. 1 died on

31-1-2009, the decree holders suppressed this fact. It is submitted

that the decree is obtained against the dead person, as such, the same

is null and void and is not executable against the legal representatives

of the deceased. The application/objection was opposed by the

petitioners by filing the detailed say. It was submitted that objector

i.e. the judgment debtor no. 3 only with a view to prolong the

proceedings in connivance with the other judgment debtors filed

misleading application. It was submitted by the learned counsel for

the petitioners that the objector/judgment debtor no. 3 himself was a

party to the proceedings right from the civil suit till the second appeal

decided by this Court. It is further submitted that the petitioners-

plaintiffs instituted the suit in the year 1988 and though the decree

was passed in their favour in the year 1995 and though was successful

before this Court wherein the second appeal filed by the petitioners

was allowed and though initiated the proceedings for execution will

have to wait for further period because of the unmeritorious

applications, objections filed by the respondents and more

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particularly, at the instance of the respondent no. 2 i.e. judgment

debtor no. 3. It is submitted by the learned counsel for the petitioners

that act of the respondents is nothing but to create hurdles in the way

of the petitioners-decree holders in receiving the fruits of the decree

passed by the competent civil Court and confirmed by this Court. It

was the submission of Mrs. Jaltare-Vaidya, learned counsel for the

petitioners that learned Court below could not have gone into the

matter by framing the issue. The application/objection itself being not

tenable ought to have been rejected by the Court below as the same

was submitted with an ulterior motive.

5. On perusal of the material placed on record, namely, the

copy of the judgment and order passed by this Court in Second Appeal

No. 100/2002, copy of the initiation proceedings initiated by the

petitioner and the copy of the application/objection and say thereto, I

find considerable merit in the submissions of learned counsel for the

petitioners. It was rightly submitted by the learned counsel Mrs.

Jaltare-Vaidya that the judgment debtor no. 3 was a party before this

Court as respondent no. 3 and the objection is filed only raising the

ground that judgment debtor no. 1 expired on 31-1-2009 and the

decree holders suppressed this fact from this Court. As stated above,

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the respondents themselves were party to the proceedings in this

Court i.e. Second Appeal No. 100/2002 and no such ground was

raised when the second appeal was pending before this Court. While

second appeal was filed before this Court, the respondent no. 1

Akheraj S/o Ramlal Shrimali (Dave) already expired, as such, the

appeal is preferred against the dead person, but this ground is taken in

the execution by raising objection and filing an application. This

clearly shows that the respondent no. 2 as judgment debtor no. 3 in

connivance with the other respondents is indulged in the act of

prolonging the proceedings and preventing the petitioners-decree

holders from receiving the fruits of the decree. The order impugned in

the petition being unsustainable is quashed and set aside. The petition

is allowed.

6. As the suit was filed in the year 1988, the learned trial

Court is directed to dispose of the execution proceedings as

expeditiously as possible and preferably within nine months from the

date of the order of this Court.

The writ petition is disposed of in above terms.

JUDGE wasnik