Bombay High Court
Jagnnath Kisan Sathe Died Lrs ... vs Laxman Ramnath More on 7 June, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7474 OF 2017
1. Jagnnath Kisan Sathe (Died) PETITIONERS
Through Legal Representatives
a. Vishrantabai Jagnnath Sathe,
Age - 81 years, Occ - Larbourer
b. Gulab Jagnnath Sathe,
Age - 57 years, Occ - Labourer
c. Raghunath Jagnnath Sathe,
Age - 57 years, Occ - Labour
d. Bhujang Jagnnath Sathe,
Age - 37 years, Occ - Labourer
All R/o Tanpurwadi, Taluka - Pathardi,
District - Ahmednagar
2. Shobha Anna Tijore,
Age - 41 years, Occ - Labourer
R/o Warur, Taluka - Shevgaon,
District - Ahmednagar
VERSUS
Laxman Ramnath More RESPONDENT
Age - 58 years, Occ - Service
R/o Tanpurwadi, Taluka - Pathardi,
District - Ahmednagar
.......
Mr. Arvind G. Ambetkar, Advocate for the petitioners
Mr. Prashant R. Nangare, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 7th JUNE, 2017
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocates for the parties finally by consent.
2. Respondent is plaintiff in Regular Civil Suit No.103 of 1989
instituted for redemption of mortgage of land specifically
described in mortgage deed, from land survey No.254 (New
Survey No.22/1), admeasuring about 24 are as described therein
from 3 Hectare, 81 are land.
3. The suit has been decreed under judgment and decree of
trial court dated 17th April, 1996. Even final decree had been
passed under an order dated 22nd February, 2013, directing
present petitioner to deliver all the documents in his possession
or power relating to suit property to the plaintiff and execute
registered sale deed in favour of plaintiff free from all
encumbrances and to deliver vacant possession of the same.
4. Regular Darkhast came to be filed for execution of decree.
In said proceedings sale deed came to be executed of about 24
are land as described in mortgage deed, by legal heirs of
mortgagee on 4th February, 2016. However, it appears that
possession had not been delivered. As such, execution
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proceedings were preferred. In said proceedings, an application
came to be moved by the decree holder for possession. The
application of the decree holder was objected to by the judgment
debtors contending that as to on which side / direction 24 are
land lies has not been explained and the property cannot be said
to be identifiable. Said application has been rejected by the
executing court on 21st March, 2017 and as such, the petitioners
are before this court.
5. Learned advocate for the petitioners - judgment debtors
contends that property decreed under the orders of the court
and the one of which possession is sought to be taken over are
different properties and it cannot be said with certainty that sale
deed is executed in respect of mortgaged property. Suit property
has been differently described and the sale deed pertains to
some other property. He submits that the court has not
considered this aspect and has cursorily passed order.
6. Learned advocate Mr. Nangare appearing for the
respondent - decree holder contends that suit has been decreed
granting redemption of mortgaged property which has been
properly described in the mortgage deed and the very same
description has been carried to in the sale deed, which has been
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executed by legal heirs of judgment debtors. He submits that
decree holder is seeking possession of the very property which
had been mortgaged and the judgment debtors are trying to
dodge execution of decree on such pretexts which are untenable.
He purports to submit that it would be a fallacious argument to
contend that suit had been instituted for a different property
than the mortgaged one. He submits, it is evident from the
property described in the mortgage deed and the one described
in the sale deed that the property is one and the same. He
submits that the executing court has properly adjudged that the
property for which execution is pending is the mortgaged
property and has also referred to that sale deed has been
executed after getting approval. Neither draft sale deed nor
execution of sale deed has been subject matter of challenge. He
points out that the court has specifically observed that question
of identifiability of the property does not arise at all. It is not
absolutely the case of the judgment debtors that the suit
property described and the one in the mortgage deed were
different at any point of time, the question which is tried to be
raised during the execution.
7. Having heard learned advocates as aforesaid, the property
as has been described during the suit for redemption has been
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granted by the court. A decree accordingly has been passed
which has been made final. Sale deed pursuant to the same has
been executed. During all these proceedings not even by whisper
there had ever been contention on behalf of the judgment
debtors that the property in suit and the one involved in the
execution has been different. It is not the case that the property
as described in the mortgage deed and the one referred to in the
sale deed has been different. A contention is sought to be raised
about direction in which property is situated in the entire
property during execution. Since execution is sought in respect
of property as described in mortgage deed which exactly
corresponds to the property described in the sale deed, it does
not appear to be a case that objection being taken for execution
of decree on that count carries any substance. The impugned
order further depicts that it has taken into account relevant
aspects involved and order dated 21st March, 2017 has been
passed issuing possession warrant. Same does not call for any
interference.
8. Writ petition, as such, stands dismissed. Rule stands
discharged.
[SUNIL P. DESHMUKH, J.]
drp/wp7474-17
