Bombay High Court
Rakesh S/O Shanabhai Patel vs Sau. C. Uma W/O C. Vijay Sarathi And ... on 22 November, 2017
Bench: Z.A. Haq
1 wp3753.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3753/2015
Rakesh son of Shanabhai Patel,
aged 50 years, Occ. Business & Cultivation,
R/o Babupeth, Chandrapur,
Tq. & Dist. Chandrapur
..... PETITIONER
...V E R S U S...
1] Sau. C. Uma W/o C. Vijay Sarathi,
Aged about 57 years, Occ. Advocate,
R/o Vaddiraju Colony, Warangal,
Tq. & Dist. Warangal [AP]
2] V. Anantram w/o V. Seshsai,
aged about 52 years, Occ. Household,
R/o Qr. No. 2-A, Sect. 8,
Street 51, Bhilai, Dist. Durg
[Chattisgarh]
3] V. Anantram S/o V. Anantam,
aged about 38 years, Occ. Service,
R/o Qr. No. 2-A, Sect. 8,
Street 51, Bhilai, Dist. Durg,
[Chattisgarh]
4] K. Shriniwas S/o K. Ramavatar,
aged about 47 years, Occ. Nil,
R/o 301, Shree Residency,
Kachinet, Amravati Road, Nagpur,
Tq. & Dist. Nagpur
*5] Sau. M. Vani W/o M. Vaijaisarathi,
aged about 59 years, Occ. Household,
R/o 4, Adams Avenue, Whealers House,
Victoria 3150,
Melbourne [Australia]
* (Deleted as per Court's order dated 08/12/2016)
6] Sau. K. Bhagyalaxmi W/o K. Shriniwas,
aged about 43 years, Occ. Household,
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R/o Civil Lines, Nagpur Road,
Chandrapur, Tq. & Dist. Chandrapur
7] Shailendra Golechha,
aged about 52 years, Occ. Business,
R/o Civil Lines, Chandrapur,
Tq. & Dist. Chandrapur
... RESPONDENT
S
=====================================
Shri M.P. Khajanchi, Advocate for the petitioner
Shri A.R. Patil, Advocate for the respondent nos. 4 and 6
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 22 nd November
,
201
7
ORAL JUDGMENT :-
1] Heard Shri M.P. Khajanchi, learned advocate for the
petitioner and Shri A.R. Patil, learned advocate for the respondent
nos. 4 and 6. None appears for the other respondents though served.
2] The learned advocate for the petitioner has pointed out
that the application (Exh. 87) on which the impugned order is passed
was opposed by the respondent no. 4, and the name of the respondent
no. 5 is deleted as she could not be served and had not filed any reply
to the application (Exh. 87).
3] Rule. Rule made returnable forthwith.
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4] The respondent nos. 1 to 3 have filed civil suit praying for
decree for partition, separate possession, mesne profit and injunction. In
this civil suit, the petitioner filed the application under Order-I Rule 10
of the Code of Civil Procedure contending that under the will executed
by the deceased Sarlabai registered on 24/08/2005 and under the will
executed by the deceased Sarlabai on 30/09/2005 , the present
petitioner is appointed Executor of the immovable properties which are
the subject matter of the civil suit and therefore he is necessary party in
the civil suit. This application is rejected by the trial Court by the
impugned order.
5] At this stage, it is not in dispute that the above referred wills
show that the petitioner is appointed Executor in respect of the property
which are the subject matter of the civil suit. It is on record ( as stated
in para 15 of the impugned order) that the petitioner has filed Civil Suit
No. 15/2015 seeking declaration that the sale-deed executed by the
present respondent no. 4 on 10/09/2014 in respect of the property
which is the subject matter of Special Civil Suit No. 84/2007 is null and
void. It is recorded in para 15 of the impugned order that the petitioner
has earlier filed an application praying that he be appointed as the
receiver in respect of the property which is the subject matter of the
Special Civil Suit No. 84/2007. In these facts, in my view, the petitioner
would be proper party to the civil suit, if not, necessary party.
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6] Considering the above facts, I find that the impugned order
rejecting the application filed by the petitioner seeking permission to
participate in the proceedings is unsustainable.
Hence, the following order is passed:-
O R D E R
1] The impugned order is set aside.
2] The application (Exh. 87) filed by the petitioner
is allowed.
3] The plaintiffs are directed to implead the
petitioner as defendant in the civil suit.
4] The trial Court to proceed further according to
law.
Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
A n s a r i
