Kalyan Baburao Bhorade And Others vs Kisan Saheba Musale, L.Rs. ...
2017 Latest Caselaw 1473 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO.9768 of 2014

 1        Kalyan S/o Baburao Bhorade
          Age: 67 years, Occu: Agriculture,
          R/o Pargaon (Jogeshwari),
          Tq. Ashti, Dist. Beed

 2        Bapurao Baburao Bharade (Died)
          through LRs

          2A Sudamatibai w/o Bapurao Borade
          Age: 62 years, Occu: Household;
          R/o Pargaon (Jogeshwari)
          Tq.Ashti, Dist. Beed.

          2B Shamal w/o Balasaheb Dhawan
          Age: 39 years, Occu: household,
          R/o Autewadi, Tq. Karjat,
          Dist. Ahmednagar

 3        Laxman s/o Bapurao Bhorade
          Age: 41 years, occu: Agriculture;
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed


 4        Digambar S/o Vitthal Kadam,
          Age: 48 years, Occu: Agriculture
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed

 5        Zumber S/o Vitthal Kadam,
          Age: 45 years, Occu: Agriculture
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed




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 6        Deubai w/o Baban Anuse
          Age: 54 years, occu: Household,
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed


 7        Shaikh Ratan Shaikh Burhan
          Age: 59 years, occu: Agriculture,
          R/o Pargaon (Jogeshwari)]
          Tq. Ashti, Dist. Beed


 8        Parwatibai w/o Baburao Bhorade
          (died in 1966)                               Petitioners


          Versus

 1        Kisan s/o Saheba Musale (Died)
          Through LRs


          1A Bhausaheb S/o Kisan Musale,
          Age: 44 years, Occu: Agriculture
          R/o Pargaon (Jogeshwari)
          Tq.Ashti, Dist. Beed


          1B Mangal d/o Kisan Musale,
          Age: 52 years, occu: household;
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed


          1C Manda d/o Kisan Musale
          Age: 42 years, Occu: Household
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed




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          1D. Nanda d/o Kisan Musale
          Age: 42 years, Occu: Household
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed


          1E. Sojar w/o Kisan Musale
          Age: 64 years, Occu: Household
          R/o Pargaon (Jogeshwari)
          Tq. Ashti, Dist. Beed


 2        Muktabai @ Parwatibai Vishnupant
          Gophane
          Age: 66 years,Occu: Household
          R/o At Post Bhotra, tq. Paranda,
          Dist. Osmanabad


 3        Subhadrabai w/o Shahaji Khedkar
          Age: 62 years, Occu: Household
          R/o Sangvi, Post Takalsingh
          Tq.Ashti, Dist. Beed


 4        Sushilabai w/o Arvind More
          Age:54 years, Occu: Household
          R/o Gond Plot No.10, Ward No.11,
          Behind Lok Vidyalaya, Wardha
          Tq. & Dist. Wardha                           Respondents

Mr.N.K. Tungar advocate for the petitioners Mr. A.R.Tapse h/f Mr. P.D. Suryawanshi advocate for respondent Nos.1-A to1-E Mrs. S.P. Mahajan & Shri A.D. Rathod Advocates for respondent Nos.2 to 4.

                       _______________





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                               CORAM :    RAVINDRA V. GHUGE, J
                                               (Date : 5th July, 2017.)


 ORAL JUDGMENT


 1        Rule. Rule made returnable forthwith and heard finally by

 consent of the parties.


 2        The petitioners, original decree holders are aggrieved by the

order dated 6.9.2014 passed by the Adhoc D.J.-1, Beed, by which

application for condonation of delay under section 5 of the

Limitation Act for preferring an appeal against the Judgment &

decree dated 23.2.2001 in RCS No.73/1995, has been allowed.

3 I have considered the submissions of the learned Advocates

for the respective sides in extenso.

4 The only issue involved in this matter is as to whether the

delay of 11 years 7 months and 11 days in lodging the Appeal

against the decree was condonable or not.

5 The facts of the case are not disputed. Original defendant

No.10 Kisan Saheba Musale had filed his Written statement on

4.7.1995 in the said Suit. He died on 29.11.1997. The suit was

decreed by Judgment dated 23.2.2001. Neither Kisan's Advocate,

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nor the Advocate for any litigating side in the matter, informed the

Civil Court that, defendant No.10 had passed away. Learned

advocates for the respective sides do not dispute that, when the

trial Court delivered the Judgment & decree, it was not within the

knowledge of the Court and was not visible from the record that

the death of Kisan was noted.

6 After the delay of 11 years and seven months, the legal

heirs of deceased Kisan filed an application No.426 of 2012,

praying for condonation of the delay so as to prefer the Appeal,

before the Appellate Court for challenging the Judgment & decree.

Three aspects were pleaded in the application. Firstly that, the

decree is against a dead person. Secondly, that the applicants had

no knowledge about the pending suit and thirdly, a notice was

received by one Sushila Arvind More, who is the resident of the

same village as that of the applicants and is aware about the

decree having been put to execution. The Appeal Court has

allowed the application by the impugned order only on one ground

that, the applicants did not have the knowledge of the

proceedings and being the legal heirs and oblivious of the

litigation, is a good ground for condonation of delay.

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7 There is no dispute that the original suit was for partition

and separate possession. One factor that emerged in the suit was

that the deceased Kisan had sold his share of the suit land.

8 Considering the principles of law, in so far as a decree being

passed against a dead person or it being inexecutable against a

person who was not a party to the suit is concerned, there can be

no debate.

9 However, the facts of this case are peculiar. In the cross-

examination of one of the applicants i.e. Bhausaheb S/o deceased

Kisan, he has specifically stated before the Appeal Court that he

was aware about the litigation to which his father Kisan was a

party, he was aware that his father was attending different dates

in the suit before the Civil Court at Ashti, whenever he used to go

to the Court, the deponent Bhausaheb was given the knowledge,

he knew the cause of action in the suit and he took no efforts to

enquire about the fate of the suit after the demise of his father.

10 In my view, these admissions are fatal to the case of the

respondents - applicants. The Trial Court has allowed the

application for condonation of delay on a solitary ground that

these applicants had no knowledge about the suit and being legal

heirs, it was a good ground to allow them to prosecute the

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Appeal, by condoning the delay. The very foundation of the

impugned order is destroyed by the admission given by witness

Bhausaheb. It is, therefore, apparent that the Court passing the

impugned order did not even care to go through the cross-

examination of Bhausaheb who is the son of the deceased Kisan.

11 Learned advocate for the applicants has relied upon the

judgment of this Court in the matter of Hongkong Investment

Co. Pvt. Ltd versus Alvaro Jose Elvino De Braganza & Anr

(2009 (3) All MR 407). I do not find that the said Judgment

would assist the applicants for the reason that in that case, the

concerned defendant died after the preliminary decree was passed

and prior to the conversion of the decree into a final decree. This

Court, therefore, held that even 17 years delay can be condoned

since the defendant has passed away in between the preliminary

decree and the final decree.

12 Notwithstanding the above, learned counsel for the legal

heirs makes a request that his remedy as obstructionists should

not be taken away by this Judgment. I find that the said request

can be accepted. It prima facie appears that the legal heirs of

deceased Kisan can take recourse to section 47 and order 21 rule

97 of the CPC in their capacity as obstructionists and raise

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grounds in the execution proceedings, which have now been

initiated by the petitioners. Needless to state, this Court has not

expressed any opinion about any right of the legal heirs and the

same are left open to be considered by the Executing Court in the

event they file their objections.

13 Considering the above, this petition is allowed.

14 The impugned order dated 6.9.2014 is quashed and set

aside and Miscellaneous C.A. No.436 of 2012 stands rejected.

15 Pending Civil Applications do not survive and stand disposed

of.

(RAVINDRA V. GHUGE , J)

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