Hari Manohar Autee vs Fakirchand Eknath Salve Died ...
2017 Latest Caselaw 782 Bom

                                                 Writ Petition No.10660/2015
                                        1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        WRIT PETITION NO.10660 OF 2015


 Hari Manohar Autee
 Age 68 years, Occu. Agri.,
 R/o Tembhurni, Taluka Jafrabad,
 District Jalna                                ...      PETITIONER

          VERSUS

 1.       Fakirchand Eknath Salve,
          Deceased, per L.Rs.

 1A)      Moti Fakirchand Salve,
          Age 33 years, Occu. Agri.,
          R/o Tembhurni, Taluka Jafrabad,
          District Jalna.

 1B)      Prakash Fakirchand Salve,
          Age 40 years, Occu. Agri.
          R/o as above.

 1C)      Janabai Baburao Jadhav,
          Age 45 years, Occu. Household,
          R/o Anwa, Taluka Bhokardan,
          District Jalna

 1D)      Manabai Ganpatrao,
          Age 43 years, Occu. Household,
          R/o Near Vitthal Mandir,
          Teli Galli, Phulambri,
          Taluka Phulambri,
          District Aurangabad.

 1E)      Chandrakalabai Purshuttam Pangarkar,
          Age 35 years, Occu. Household,
          R/o Near Paknikar Hospital,
          Police Galli, Kadrabad, Jalna

 1F)      Hirabai Digambar Domle,
          Age 34 years, Occu. Household,
          R/o Savargaon Dukare,
          Taluka Chikhali, District Buldhana



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                                                      Writ Petition No.10660/2015
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 1G)      Sarlabai Krishna Raut,
          Age 33 years, Occu. Household,
          R/o Tendulwadi, Taluka Gangapur,
          District Aurangabad

 1H)      Shakuntala Ratan Bujade,
          Age 22 years, Occu. Household,
          R/o Walse Jod, Taluka Bhokardan,
          District Jalna.                  ...              RESPONDENTS

                                .....
 Shri S.S. Bora, Advocate for petitioner
 Shri Yogesh Somani, Advocate for respondent No.1A to 1E
                                .....


                                  CORAM:       S. B. SHUKRE, J.

                                  DATED:       16th March, 2017.


 ORAL JUDGMENT :



 1.               Rule.        Rule made returnable forthwith and heard

finally by consent of learned counsel for the parties.

2. In an exercise of suo moto power under Section

54, in execution proceedings, the Executing Court, by the

order passed on 19/6/2015, has directed that the precept be

prepared and sent to the Collector under Section 54 of the

Civil Procedure Code for execution of the decree on the

ground that the land under execution is an agricultural land.

It is this order which has been challenged for its legality and

correctness in the present petition.

Writ Petition No.10660/2015

3. Learned counsel for the petitioner submits that, the

suit having been filed and decreed for delivery of possession

of an immovable property, in which no issue of partition and

separate possession was ever involved, not the provision of

Section 54, but the provision of Order 21 Rule 35 of the Civil

Procedure Code is applicable, which fact has been completely

missed out by the court of Civil Judge. According to the

learned counsel for the respondent, the learned Civil Judge is

right because in the case of Arun Ashruba Mhaske Vs.

Atmaram Dattu Mhaske reported in 2007 ALL MR (5)

167 , learned Single Judge of this Court found that the

provisions of Order 21 Rule 35 do not apply to cases where

possession of agricultural land has to be delivered.

4. On going through the case of Arun Vs. Atmaram

(supra), I find that there is no substance in the argument of

learned counsel for the respondent. The learned Civil Judge

has not considered in its entirety the judgment rendered in

the case of Arun Vs. Atmaram. It was a case where the suit

was for partition and separate possession and, therefore, the

provisions of Section 54 was applicable. This is a case

wherein the issue of partition and separate possession was

never involved and the suit was only for delivery of possession

Writ Petition No.10660/2015

of the immovable property to which the provisions of Order 21

Rule 35 of the Civil Procedure Code applies. Therefore, it is to

be stated that the impugned order is passed upon

misconception of facts and law and, therefore, it deserves to

be quashed and set aside.

5. In the result, the Writ Petition is allowed. The

impugned order is quashed and set aside and it is directed

that the respondents or the Judgment Debtors shall hand over

the possession of the immovable property in terms of the

decree passed in the suit within one month from the date of

this order. Rule is made absolute in the above terms. No

costs.

( S. B. SHUKRE ) JUDGE

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