Bombay High Court
Ramkrishna Ambadas Madake Died ... vs The State Of Maharashtra And ... on 8 August, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.164 OF 2016
Ramkrishna Ambadas Madake (Died) Through LRS PETITIONER
1. Urmilabai w/o Ramkrishna Madake
Age - 54 years, Occ - Agriculture & Household
2. Vidhyanand s/o Ramkrishna Madake,
Age - 32 years, Occ - Agriculture
3. Vivekanand s/o Ramkrishna Madake
Age - 30 years, Occ - Agriculture
All R/o Nitali, Taluka & District - Osmanabad
VERSUS
1. The State of Maharashtra RESPONDENTS
Though Collector, Osmanabad
2. Gauri d/o Ramkrishna Madake,
Age - 13 years, Occ - Agriculture
3. Meena w/o Ramkrishna Madake,
Age - 35 years, Occ - Household
(Respondent No. 2 is minor and under
guardianship of her mother Meena
i.e. respondent No. 3)
Both R/o Nitali, Taluka & District - Osmanabad
At present Balaji Nagar, Shekapur
Taluka and District - Osmanabad
.......
Mr. Vivekanand V. Ingale, Advocate for the petitioners
Mr. P. N. Kutti, AGP for respondent State
Mr. S. B. Chaudhari, Advocate for respondent No. 3
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 8th AUGUST, 2017
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the appearing parties.
2. Petitioners are before this court aggrieved by order dated
19th November, 2014 upon an application Exhibit-11 in Special
Darkhast No. 640 of 2011.
3. Special Darkhast No. 640 of 2011 has been prosecuted for
realization of land acquisition compensation in Land Acquisition
Reference No. 84 of 2002 which had been preferred by deceased
Ramkrishna Madake. The execution is pending before Civil
Judge, Senior Division at Osmanabad.
4. Application Exhibit-11 has been moved by present
respondents No. 2 and 3 claiming to be daughter and wife of
deceased Ramkrishna Madake. Ramkrishna Madake died on 24 th
September, 2011.
5. Application Exhibit-11 makes reference to that having
regard to aforesaid, names of respondents No. 2 and 3 be shown
as legal heirs of deceased Ramkrishna in aforesaid execution
proceedings. Other legal heirs who have been prosecuting the
execution proceedings, have concealed fact of respondents No. 2
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and 3 being legal heirs of deceased Ramkrishna.
6. Learned advocate for the petitioners has pointed out that
application went uncontested.
7. Learned advocate for the petitioners disputes claimed
position and further refers to that advocate appearing in
execution proceedings had not filed any say nor had been
intimating anything about lodging of application Exhibit-11.
8. He submits that as a matter of fact, Urmila, the first wife is
alive, which is not disputed and in such a case, application
Exhibit-11 could not have been granted and second wife has no
legal status under the Hindu law.
9. In the circumstances, learned advocate for the petitioners
urges for restoration of application Exhibit-11 to its position as
had been subsisting before passing of the impugned order dated
19th November, 2014.
10. Whereas, learned advocate for the respondents contends
that, there had been no contest before executing court. There is
no substance in the contention of petitioners. He further
submits, it may not be a case wherein it can be said that
respondent No. 2 would not have any case at all.
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11. Perusal of the order also depicts that it has been passed
since there had been no say filed by decree holders and since
Exhibit-11 shows respondents No. 2 and 3 to be legal heirs, the
application has been allowed. It appears that the court had not
applied its mind to the status of execution petitioners, who also
claim to be wife, sons and daughters of deceased Ramkrishna. In
view of the same, it appears that it would be expedient if
petitioners are allowed an opportunity to address themselves on
application Exhibit-11, albeit subject to costs, since approach of
the petitioners calls for imposition of costs, which depicts some
element of casualness in conduct of execution proceedings. Since
the order is of 2014 and the writ petition has been filed after
almost a year, request of the petitioners would be considered
subject to payment of costs to other side.
12. In the circumstances, writ petition stands allowed,
impugned order dated 19th November, 2014 on Exhibit-11 in
Special Darkhast No. 640 of 2011 is set aside. Application
Exhibit-11 stands restored to its position as was subsisting
before 19th November, 2014, subject to payment of costs of
Rs.5000/-. Executing court shall, upon hearing parties, pass
appropriate orders. Rule is made absolute in aforesaid terms.
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Deposit of costs within a period of six weeks from today in
executing court is a condition precedent. Upon deposit of costs,
the same be disbursed to respondents No. 2 and 3 equitably.
[SUNIL P. DESHMUKH, J.]
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