Bombay High Court
Mathurabai W/O. Shivnarayan ... vs Suresh S/O. Dattatraya Deshmukh ... on 31 July, 2017
Bench: S.B. Shukre
1 CRA47.2017(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.47 OF 2017
Mathurabai w/o Shivnarayan Gupta,
Aged 52 years, Occ. Household work and agriculturist,
R/o Pannalal Nagar, Amravati.
. APPLICANT
--Versus ---
1. Suresh s/o Dattatraya Deshmukh, ]
Aged 67 years, Occ. Nil.
R/o C/o D.T.Deshmukh, Mudholkar Petl Amravati.
2. Sau. Sumedha w/o Suresh Deshmukh,
Aged 60 years, Occ. Household,
R/o C/o D.T.Deshmukh, Mudholkar Petl,
Amravati.
3. Santosh s/o Suresh Deshmukh,
Aged 23 years, Occ. Labourer,
R/o C/o D.T.Deshmukh, Mudholkar Petl,
Amravati.
4. Swapnil s/o Suresh Deshmukh,
Aged 29 years, Occ. Service,
R/o C/o D.T.Deshmukh, Mudholkar Petl,
Amravati. NON APPLICANT
S
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Shri S.D.Harode, Advocate for applicant.
None for non applicant nos. 1 and 2 though duly served.
Shri M.A.Vaishnav, Advocate for non applicant nos. 3 and 4.
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2 CRA47.2017(J)
CORAM : S.B.SHUKRE,J.
DATED : 31.07.2017
ORAL JUDGMENT
Heard learned counsel for the parties.
2. Rule. Rule made returnable forthwith. Heard finally by consent
of the learned counsel appearing for the parties.
3. It is submitted on behalf of the applicant, original defendant
no.3, that the plaint does not disclose cause of action as there are no
pleadings in the plaint that the decree passed in previous Civil Suit was
vitiated on account of fraud or collusion or some disqualifying factor.
Reliance has been placed upon the learned Full Bench Judgment of this
Court in Shivlal
Bhag van
Vs. Shambhu Prasad Parvatishankar
and
another, ILR 435 decided on 18.04.1905.
4. Shri Vaishnav, learned counsel for the respondent nos.3 and 4,
the contesting respondents, submits that since the respondent nos. 3 and 4,
the original plaintiffs, were not parties, to the previous suit, that decree
would not bind them and this is a disqualifying circumstance as
contemplated under the ruling of the Full Bench of this Court in Shivlal
Bhagwan (supra). He submits that, in fact, the objection as raised by the
applicant relates to an issue of res-judicata which involves mixed question
of law and fact and therefore, adjudication in this case would be required
not only on this point but also on other issues on merits as held by the
Hon'ble Apex Court in the case of Vaish Aggarwal Panchayat Vs. Inder
3 CRA47.2017(J)
Kumar & others AIR 2015 SC 3357.
5 None appears for the respondent nos. 1 and 2 though duly
served. Even otherwise they are not contesting respondents.
6. On going through the application filed under Order 7 Rule 11
(d) C.P.C. as well as the impugned order, I find that the learned counsel for
the respondent nos. 3 and 4 is right in his submissions. In the case of
Shivlal (supra) the learned Full Bench of this court found, in the facts and
circumstances of the case, that the sale deed executed through Court in
execution of a decree cannot be set aside on the ground that consent of
some of minors of the LRs represented through their guardian, was not
taken, unless there is allegation of fraud or collusion or involvement of
some disqualifying circumstance. In the present case, the plaint does not
disclose any contention regarding fraud or collusion going behind the
passing of the decree in the previous civil suit. In the case of Shivlal
Bhagwan (supra), the minors were arrayed as co-defendants and thus, they
were party to the decree passed in that suit. Such are not the facts of the
present case. The respondents, who were minors at the relevant time, were
not joined as co-defendants. Therefore, I am of the view that, at this stage,
the ratio of Shivlal Bhagwan's case would not be applicable to the present
case and if that is so, it cannot be said that the plaint in this case does not
disclose any cause of action.
7. However, the issue raised by the applicant under Order 7 Rule
11(d) would enter into an arena of the question of res-judicata, as it is the
4 CRA47.2017(J)
contention of the applicant that the decree passed in the previous suit had
attained finality, that the respondent nos. 3 and 4 were duly represented in
the previous suit by their legal guardian and even their objection under
Section 47 of the CPC was rejected by the Executing Court against which no
challenge was filed by these respondents. This issue, as held in the case of
Vaish Aggarwal (supra), would involve mixed question of facts and law, and
if the facts are admitted, the issue may well raise a pure question of law.
Still, it would require adjudication on merits by considering not only
pleadings in the plaint, but also the defense of the respondents and
therefore, it would be appropriate that it is left to be decided by resorting to
the procedure prescribed under order 14 of the CPC.
8. In view of above, I find no merit in this revision application.
There is no infirmity or perversity in the impugned order. The revision
application deserves to be dismissed and it is dismissed accordingly.
9. The trial Court may adjudicate upon the issue involved and
discussed earlier by resorting to procedure prescribed under the provisions
of Order 14 of the CPC. The revision application stands dismissed.
The rule is discharged in the above terms. No costs.
(S.B.SHUKRE, J)
Andurkar
