Shri Mitaram S/O Chimana Sursaut ... vs Parasram S/O Dulichand ...
2017 Latest Caselaw 2067 Bom

 Judgment                                          1                                wp4898.16.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                           WRIT PETITION NO. 4898  OF 2016


 1. Shri Mitaram S/o.Chimana Sursaut,
    aged about 54 years, Occupation :
    Agriculturist,

 2. Shri Kunjilal S/o. Chimana Sursaut,
    Aged about 51 years, Occupation :
    Agriculturist. 

 3. Shri Rewatlal S/o. Chimana Sursaut,
    Aged about 56 years, Occupation :
    Agriculturist. 

 4. Shri Radheshyam S/o. Chimana Sursaut,
    Aged about 55 years, Occupation :
    Agriculturist.
  
 5. Shri Shantilal S/o. Chimana Sursaut,
    Aged about 41 years, Occupation :
    Agriculturist. 

      All 1 to 5 are R/o. Village Mendha, 
      Tq. Tirora, Distt. Gondia. 
                                                                     ....  PETITIONERS.

                                     //  VERSUS //

 Parasram S/o. Dulichand Suryawanshi,
 since died, represented through
 Dnyaneshwar Mahadeo Kosarkar, 
 Aged about 39 years, Occ.: Advocate, 
 R/o. Village Mendha, Tq. Tirora, 
 Distt. Gondia. 
                                                                      .... RESPONDENT
                                                                                    .

 ___________________________________________________________________
 Shri U.K.Bisen, Advocate for Petitioners. 
 Shri S.G.Karmarkar, Advocate for Respondent. 
 ___________________________________________________________________



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  Judgment                                               2                                wp4898.16.odt




                               CORAM : Z.A.HAQ, J.

DATED : APRIL 27, 2017.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The Judgment Debtor has challenged the order passed by the

executing Court by which the application (Exh.No.53) filed by the

respondent praying that he be permitted to come on record of the execution

proceedings as legal representative of original Decree Holder i.e. Parasram

Dulichand Suryawanshi., is allowed. The respondent claims right on the basis

of a will alleged to have been executed by Parasram on 4th April, 2015 in

favour of the respondent.

4. The dispute between the petitioners and Parasram had reached

this Court in Second Appeal No.1 of 2015 and Second Appeal No. 29 of

2015. During pendency of these second appeals Parasram died and Civil

Application No. 609 of 2016 was filed in Second Appeal No. 29 of 2015 by

the present petitioners (appellants in those second appeals) seeking

permission to bring on record Smt. Leelawati widow of Parasram

Suryawanshi, Rajendra S/o. Parasram Suryawanshi and Surendra S/o.

Judgment 3 wp4898.16.odt

Parasram Suryawanshi as legal representatives of Parasram Suryawanshi.

The civil application came to be allowed by this Court by the order passed on

6th September, 2016 and above referred legal representatives of Parasram

Suryawanshi were brought on record in the second appeal. The second

appeals are decided by the judgment delivered on 22nd February, 2017. The

copy of the judgment given in Second Appeal No.1 of 2015 and Second

Appeal No.29 of 2015 shows that the above named legal representatives of

Parasram Suryawanshi were represented by an advocate which means that

those legal representatives participated in the proceedings of Second Appeal

No. 29 of 2015. The learned advocate for the petitioners stated that the

present respondent was not party to the second appeals. The learned

advocate for the respondent has submitted that he is not aware about the

above facts.

5. Be that as it may, the above facts are relevant for considering

the entitlement of the respondent to come on record as legal representative

of deceased Parasram Dulichand Suryawanshi. The impugned order is dated

2nd August, 2016. The order passed by this Court on Civil Application No.

609 of 2016 in Second Appeal No. 29 of 2015 is dated 6th September, 2016

i.e. subsequent to passing of the impugned order. Similarly, the second

appeals are decided subsequent to passing of the impugned order.

Judgment 4 wp4898.16.odt

6. Apart from this, I find that the executing Court has committed

illegality in observing that the issue whether the will is forged or bogus

cannot be decided by it and though such observations are made, the

executing Court has recorded that prima-facie it is established that after

death of Parasram the present respondent (applicant before the executing

Court) has become owner of the property mentioned in the Will Deed.

As I find that the conclusions of the executing Court are not

sustainable and that the order passed by this Court on 6th September, 2016

and the fact that the widow and sons of deceased Parasram contested the

second appeal as his legal representatives will have to be considered by the

executing Court while passing order on application (Exh.No.53), the

following order is required to be passed :

        i)         The impugned order is set aside.

        ii)        The executing Court shall decide the application (Exh.No.53)

                   afresh.

        iii)       The parties are at liberty to bring on record all the relevant

                   facts.

Rule is made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE

RRaut..