Aruna W/O Ashwin Chavhan And ... vs Uddhav S/O Ramdas Rathod
2021 Latest Caselaw 6072 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           : NAGPUR BENCH : NAGPUR.

                              WRIT PETITION NO. 1559 OF 2021
                        ARUN W/o ASHWIN CHAVHAN AND ANOTHER
                                       VERSUS
                             UDDHAV S/o RAMDAS RATHOD
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Office Notes, Office Memoranda of                           Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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                         Mr. Amol Deshpande, Advocate for the petitioners.

                                 CORAM : V. M. DESHPANDE, J.

DATE : APRIL 05, 2021.

1. This writ petition is filed challenging the order passed by the learned Executing Court i.e. learned 4 th Joint Civil Judge, Junior Division, Pusad, dated 24.11.2020 below Exhs. 56 and 61 in Regular Darkhast No. 17/2010, which were filed by the present petitioners and which were rejected by the learned Executing Court.

2. I have heard Mr. Amol Deshpande, learned counsel for the petitioners. With the assistance of the learned counsel, I have gone through the impugned order.

3. The respondent herein had filed a civil suit for injunction, declaration and possession against defendants

- Raju Rathod, Arjun Rathod and Smt. Genabai Rathod bearing Regular Civil Suit No. 54 of 2008. As per the copy of the judgment which is annexed along with this writ petition, in the said suit filed by the present respondent, the suit property was Survey No. 37/1. The defendants in the said suit contested the suit after they being summoned. Various documents were filed and after appreciating oral as well as documentary evidence, the learned 2nd Joint Civil Judge, Junior Division, Pusad,

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vide judgment and decree dated 05.03.2010 was pleased to grant decree in favour of the respondent holding that the respondent is the owner of the suit property and the defendants were directed to handover its vacant and peaceful possession. Needless to mention, the appeal carried by the original defendants before the Appellate Court was also dismissed.

4. The present petitioners were not party either in the civil suit or before the Appellate Court.

5. The respondent/plaintiff filed execution i.e. Regular Darkhast No. 17 of 2010 for getting the fruits of the judgment and decree passed in his favour by the learned trial Court, which was confirmed by the learned Judge of the Appellate Court. In the said execution proceeding, the present petitioners surfaced and filed their objection under Section 21 Rule 97 of the Code of Civil Procedure (Exh.56) and also filed an application (Exh.61) for framing the issues for deciding their objection.

6. According to the petitioners, their father had entered into an agreement to purchase land Survey No. 37/1/E having well and mango trees. According to the objection, if the decree is allowed to be executed, the respondent will obtain possession of the said land. Therefore, the objection.

7. The respondent/decree holder filed say (Exh.57) wherein it was pointed out that the decree is relating to land survey No. 37/1 and not relating to survey No.37/1/E. It was also pointed out that the present

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objectors have no concern whatsoever in nature in respect of the land survey No.37/1. It was also contended that initially the sister of Judgment Debtor filed similar applications, which were rejected.

8. The learned Judge of the Executing Court found that the suit property is survey No. 37/1 for which the decree is granted, which is having no concern with Survey No. 37/1/E. Further, it is observed by the learned Judge of the Executing Court that nothing was brought before the said Court to substantiate the contention of the petitioners that their father had agreed to purchase survey No. 37/1/E.

9. In the aforesaid factual background, in my view, the learned Judge of the Executing Court was right in rejecting the application (Exh.56) since there was no merit in the said application. There was no reason for the learned Judge of the Executing Court to allow Exh.61.

10. The writ petition is, therefore, meritless. The same is accordingly rejected. No order as to costs.

JUDGE Diwale