Bombay High Court
1.Vitthal Maruit Desavale vs Shivgonda Bhau Karve on 17 May, 2017
Bench: A.S. Oka
habeeb 1 211.wp.842.97.98.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE JURISDICTION
WRIT PETITION NO.842 OF 1997
Vitthal Maruit Desavale & Ors. .. Petitioners
Vs
Shivgonda Bhau Karve & Ors. .. Respondents
None for the Petitioners.
None for the Respondents.
CORAM : A. S. OKA, J.
DATE : 17 MAY, 2017.
ORAL JUDGEMENT (PER A.S. OKA, J.)
1. None appears for the Petitioners when the petition is
called out. 1st to 4th Respondents are the contesting Respondents.
The said Respondents are not represented by an Advocate. The office
endorsement shows that the notice issued to them through Court has
been served. They have not appeared after the service of notice. The
Respondent No. 5 is a formal party.
habeeb 2 211.wp.842.97.98.doc
2. I have perused the petition. The subject matter of this
petition is an Agricultural land bearing survey No. 106/3 (Gat No.
194) admeasuring No. 2 Acres and 34 Gunthas, situated at village
Koregaon, Taluka Walva, District Sangli. The 1 st to 4th Respondents
filed proceedings under Rule 12(c) of order XX of the Code of Civil
Procedure 1908, in the Court of the Civil Judge, Junior Division
Islampur. The present Petitioners have been shown as the opponents
in the said application. It appears that 1 st to 4th Respondents initiated
execution proceedings being BADR No. 1/1990 against legal
Representatives of Dnyanu Ramakoli and Shamrao Vitthal Patil in
the Court of Civil Judge, Junior Division, Islampur for execution of
award made on 28th July 1954 under the provisions of the Bombay
Agricultural Debts Relief Act, 1947.
3. The present Petitioners were not parties to the said
execution proceedings. According to the case of the petitioner, it was
shown that the possession of the said land subject matter of this
petition was taken from the heirs of said Dnyanu Ramakoli and
Shamrao Vitthal Patil and was given to the 1st to 4th Respondents.
habeeb 3 211.wp.842.97.98.doc
The 1st to 4th Respondents issued a notice to the Petitioners
demanding a sum of Rs.6,00,000/- from them towards mesne profits
for the period between 1947 and 1955. It is claimed in the said
notice that as per the order passed in Execution Application No.
1/90, the 1st to 4th Respondents have been placed in possession of the
said land on 10th December 1995. It appears that for the recovery of
the said amount of Rs.6,00,000/- from the petitioners, the 1 st to 4th
Respondents filed the aforesaid application under Rule 12 (c) of
Order XX of the Code of Civil Procedure, 1908 (for short "the said
Code"). The said Application was numbered as Decree Final
Application No. 3/1996 (for short "the said application").
4. The said application was contested by the Petitioners by
contending that the Petitioners were not made parties to the award
dated 28th July 1954 passed under the provisions of the Bombay
Agricultural Debts Relief Act and Execution Application No. 1/1990.
It was contended that orders passed in the said proceedings are not
binding on the Petitioners. In the said application, the 1 st to 4th
Respondents made an application under Rule 42 of Order XXI of the
habeeb 4 211.wp.842.97.98.doc
said Code for attachment. It is alleged in the said application that the
4th and 5th Petitioners are the owners of the land bearing Gat Nos. 97
and 185 at Koregaon and that they have sold the sugarcane crop on
the lands bearing Gat Nos. 97 and 185 to the 5 th Respondent sugar
factory. It was alleged that the Petitioners were likely to receive
payment of price of sugarcane from the 5th Respondent sugar factory.
Therefore, the said amounts payable by the 5 th Respondent to the 4th
and 5th Petitioners were sought to be attached by the said application.
By the impugned order dated 20th January 1997, the learned Civil
Judge, Junior Division, Islampur ordered attachment of the said
amounts and directed the 5th Respondent to deposit the amounts in
the Court. By ad-interim order dated 18 th February 1997, the
operation of the impugned order was stayed by the learned Single
Judge. On 27th March 1998, Rule was issued in this Writ Petition
and ad-interim relief granted earlier was confirmed.
5. The Petitioners have relied upon the orders passed by the
authorities under the Maharashtra Tenancy and Agricultural Lands
Act, 1948. The Petitioners are relying upon the certificate issued
habeeb 5 211.wp.842.97.98.doc
under Section 32-M of the Maharashtra Tenancy and Agricultural
Lands Act, 1948 (for short "the said Act of 1948"). The said
certificate was issued by the Agricultural Lands Tribunal on 4 th
January 1990 in respect of the said land subject matter of this
petition. The contention of the Petitioners is that as the said land is
vested in them, the claim for mesne profits made by the 1 st to 4th
Respondents was not tenable on the basis of the orders passed in the
proceedings under the Bombay Agricultural Debts Relief Act which
are not binding on them. The submission of the Petitioners appears
to be that the learned Judge has not taken into consideration
objections raised by the Petitioners to the said application for
attachment by filing a reply.
6. I have carefully perused the impugned order. I have also
perused the detailed reply filed by the Petitioners to the said
application as well as to the application at Exhibit - 32 for attachment
before Judgment. The impugned order reads thus :-
" ORDER BELOW EXHIBIT - 32.
Read the application and say filed. Perused
case law A.I.R. 1941. Calcutta 357. Read Order 21
habeeb 6 211.wp.842.97.98.doc
R.42 of C.P.C.. It is clear that attachment under order
21 X 42 C.P.C. can be made in respect of a decree
which directs an enquiry as to mesne profit. So, D.H.
is entitled for attachment of the payment of the
sugarcane crop as per the application. So, I pass
following order :-
O RDE R
Application is granted.
Payment of sugarcane crops standing in the
name of Vilas Pandurang Desavale and Shivaji Maruti
Desavale r/o. Koregaon Tal. Walava in respect of G.
No. 97 & G. No. 185 of village Koregaon for the
current year since 1996-97 is hereby attached.
Rajaram Bapu Patil, co-operative sugar
factory is directed to deposit the payment of sugarcane
crops as mentioned above in the court. Cost in cause. "
7. It is obvious that the learned Judge has not at all adverted
to the contentions raised by the Petitioners in the reply dated 28 th
January 1997. Moreover, the learned Judge has completely ignored
that there was no adjudication made as regards the liability to the
Petitioners to pay any mesne profits to the 1st to 4th Respondents.
The learned Judge also ignored that Rule 42 of order XXI can be
invoked only in execution proceedings filed under Order XXI of the
said Code. The said application was for determination of mesne
habeeb 7 211.wp.842.97.98.doc
profits under Clause (c) of Rule 12 of Order XX of the said Code. In
view of Sub-rule 2 of Rule 12 of Order XX, a final decree regarding
mesne profit could have been passed only after inquiry under clause
(c) of Sub-rule 1 of Rule 12 of Order XX was concluded. Therefore,
Rule 42 of Order XXI could not have been invoked pending the final
decision of the said application. For passing the impugned order, the
learned Judge has specifically invoked provisions of Rule 42 of Order
XXI of the said Code which was applicable only to the execution
applications. Only on this ground, the impugned order deserves to
be set aside. However, no adjudication is made on the rights of the
parties in the pending application.
8. Accordingly, petition is disposed of by passing following
order :-
ORDER
a) The impugned order dated 28th January 1997, passed
by the learned Civil Judge, Junior Division, Islampur
below application at Exhibit - 32 in Decree Final No.
3/1996, is hereby set aside.
habeeb 8 211.wp.842.97.98.doc
b) Application at Exhibit - 32 stands dismissed.
c) However, all the remedies and contentions of the 1 st to
4th Respondents are kept open.
d) Rule is made absolute on above terms.
(A. S. OKA, J.)
