Deelip Balasaheb Shinde And Anr vs Madan Bhausaheb Shinde And Anr
2021 Latest Caselaw 6370 Bom

                                                   Writ Petition No.10455/2012
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     WRIT PETITION NO.10455 OF 2012



 Deelip s/o Balasaheb Shinde & anr.                  ... PETITIONERS

          VERSUS

 Madan s/o Bhausaheb Shinde & anr.                   ... RESPONDENTS

                               .......
 Shri Joslyn Menzes, Advocate holding for
 Shri P.S. Paranjape, Advocate for petitioners
 Shri A.N. Patil, Advocate for respondent No.1
                                .......


                                  CORAM :       R. G. AVACHAT, J.


                  Date of reserving order : 5th March, 2021
                  Date of pronouncing order : 9th April, 2021


 ORDER:

The challenge in this Writ Petition is to the order

passed by Civil Judge, Junior Division, Pathri on 5/11/2012,

below application Exh.48 in Regular Darkhast No.16/2012

(Old Special Darkhast No.1/2003). By the impugned order,

the objection raised by the petitioners to the execution of the

decree passed in the Special Civil Suit, No.7/2001, came to be

turned down. The petitioners are, therefore, before this

Court.

Writ Petition No.10455/2012 :: 2 ::

2. Facts relevant for deciding this Writ Petition are as

follows :

Respondent No.1 filed the suit (Special Civil Suit

No.7/2001) against respondent No.2 (defendant in the suit)

for specific performance of agreement for sale dated

9/3/1997. The suit came to be decreed on 10/1/2002,

directing the respondent No.1 (plaintiff) to deposit

Rs.27,000/- in the Court within one month from the date of

the decree. The respondent No.2 (defendant) was directed to

execute the sale deed of the suit land in favour of the

respondent No.1 after deposit of the amount of Rs.27,000/-.

In case the respondent No.2 failed to execute the sale deed,

the sale deed was to be executed by a Court Commissioner.

The respondent No.2 was permanently restrained from

obstructing the respondent No.1's possession over the suit

land, Gut No.371, admeasuring 2 Hectors 90 R.

3. The respondent No.1 (Decree Holder) put the

decree for execution. It is execution proceeding, being

Regular Darkhast No.16/2012 (Old Special Darkhast

No.1/2003). In the very proceeding, the respondent No.1

made the present petitioners parties as Judgment Debtors

Writ Petition No.10455/2012 :: 3 ::

No.2 and 3 respectively with the prayers for directing the

petitioners to execute the sale deed in favour of respondent

No.1 and hand him over the possession of the suit land.

4. The petitioners moved application Exh.48, raising

objections to the executability of the decree against them.

The said application was titled as an application for passing a

final decree. A copy of the said application has been on

record. None of the parties has, however, adverted to the

contents of the said application. On hearing the parties to the

said application, the Executing Court turned down the said

application vide order impugned in this Writ Petition. The

Executing Court observed that the said application could not

be treated as one under Section 47 of the Code of Civil

Procedure (C.P.C.). It also held the said application to have

been filed after long span of nearly eight years after having

got the knowledge of the decree and, therefore, held the

application to have been barred by limitation. The Executing

Court further observed that, the decree is binding on the

petitioners herein unless and until the same is set aside by a

competent Court.

5. Heard learned counsel for the parties. Shri Joslyn

Menzes, learned counsel holding for Shri P.S. Paranjape,

Writ Petition No.10455/2012 :: 4 ::

learned counsel appearing for the petitioners herein would

submit that the petitioners had purchased the suit land long

before the respondent No.1 (Decree Holder) filed the Suit,

Special Civil Suit No.7/2001 for specific performance of

agreement for sale. The petitioners had moved the revenue

authorities for recording their names in the revenue record of

the suit land. The respondent No.1 had raised an objection

for mutating the names of the petitioners in the revenue

record. The respondent No.1 has been unsuccessful therein.

He did not challenge the certification of the mutation entry.

The respondent No.1 thereafter filed the suit against the

respondent No.2 alone for specific performance. The

petitioners were not impleaded as parties to the said suit in

spite of knowledge of the sale deed having been executed in

their favour by the respondent No.2 on 23/4/1998. The suit

was proceeded exparte. The same indicates that it was a

collusive suit between the respondents No.1 and 2. The

decree passed in such suit is thus not binding on the

petitioners and the proceeding for execution of a decree

passed in the said suit is not competent against the

petitioners. The learned counsel, therefore, urged for setting

aside the impugned order.

6. Shri A.N. Patil, learned counsel appearing for the

Writ Petition No.10455/2012 :: 5 ::

respondent No.1 would, on the other hand, submit that the

petitioners claim through the respondent No.2. The

agreement for sale precedes the execution of sale deed in

favour of the petitioner. On execution of the agreement for

sale, the respondent No.2 did not have authority to execute

the sale deed in petitioners' favour. The rights of the

respondent No.1 under the agreement for sale do not get

defeated by subsequent transaction. The petitioners are thus

bound by the decree passed in Special Civil Suit No.7/2001.

According to learned counsel, the Executing Court has thus

rightly rejected the application Exh.48. He would, therefore,

urge for dismissal of the Writ Petition.

7. The petitioners and the respondents are relatives

of each other. One Bhausaheb was a common ancestor. He

was survived by three sons - Manikrao (deceased), Madan

and Balasaheb. The respondent No.2 herein is the elder son

of Manikrao. The petitioners are the sons of Balasaheb. As

such, the respondent No.1 Madan is uncle of petitioners and

the respondent No.2.

8. Admittedly, the respondent No.2 sold the suit land

to the petitioners under a registered sale deed dated

23/4/1998. A copy of the sale deed is on record. Recitals of

Writ Petition No.10455/2012 :: 6 ::

the sale deed indicate the petitioners to have purchased the

land for consideration of Rs.1,97,000/-. Possession of the

land appears to have been delivered to them under the sale

deed. The petitioners then moved the application dated

26/5/1999 to the Village Talathi for recording of their names

in the revenue record of the land Gut No.371. It appears

that, the respondent No.1 raised an objection for recording

the names of the petitioners in the revenue record of the land

on the ground of having agreed to purchase the land under

the agreement for sale executed in his favour by the

respondent No.2 on 9/3/1997. The Tahsildar, vide his order

dated 15/3/2000, directed to record the names of the

petitioners in the revenue record of the land Gut No.371. The

respondent No.1 did not challenge the said order before the

appellate authority under the Maharashtra Land Revenue

Code, 1966 (MLRC).

9. It is only on 27/4/2001 the respondent No.1 filed

the suit (Special Civil Suit No.7/2001) against the respondent

No.2 alone for specific performance of agreement for sale

dated 9/3/1997. The said suit was decided exparte. The

petitioners have, therefore, every reason to contend that it

was a collusive suit between the respondents No.1 and 2.

Writ Petition No.10455/2012 :: 7 ::

10. Section 19 of the Specific Relief Act, 1963 reads :-

"19) Relief against parties and persons claiming under them by subsequent title :- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against ---

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

               (c)      ........
                        . . . . . . . ."

11. True, the agreement for sale precedes the sale

deed executed by the respondent No.2 in favour of the

petitioners. As such, the petitioners may be said to be the

persons claiming under the respondent No.2 (defendant in the

suit) by title arising subsequent to the contract. There is,

however, exception in the nature of a transferee for value who

has paid his money in good faith and without notice of the

original contract. The respondent No.1 had every knowledge

about the title of the suit land having been transferred by the

respondent No.2 in favour of the petitioners since he himself

had raised an objection before the revenue authorities for

recording the names of the petitioners in the revenue record

Writ Petition No.10455/2012 :: 8 ::

pursuant to the sale deed. In this factual backdrop, the

respondent No.1 should have impleaded the petitioners as

party defendants to the suit for the specific performance of

agreement for sale. Since the same has not been done, the

decree passed in the said suit is not binding on the

petitioners. The learned Executing Court was not correct in

observing that subsequent to the execution of the agreement

for sale, the respondent No.2 did not have authority to sale

the land in favour of the petitioners.

12. True, the Executing Court was right in observing

that the objection raised by the petitioners could not be

considered to be one under Section 47 of the C.P.C. since

their claim does not pertain to a transaction post institution of

the suit. The petitioners were neither parties to the suit nor

claim to be representatives of any of the parties to the suit.

The respondent No.1 in the execution proceedings itself made

the petitioners parties thereto and asked for relief of

possession. It is not known as to when the respondent No.1

did lose possession of the suit land, if any, when he claims to

have been put in possession of the land under the agreement

for sale. Be that as it may, the decree passed in Special Civil

Suit No.7/2001 is not binding on the petitioners as they were

not parties to the suit in spite of the plaintiff having been

aware the respondent No.2 to have sold the suit land to the

Writ Petition No.10455/2012 :: 9 ::

petitioners long before the suit was filed. This Court is,

therefore, not in agreement with the reasons given by the

Executing Court for turning down the application Exh.48

moved by the petitioners. Interference is, therefore, called

for with the impugned order.

13. The Writ Petition, thus, succeeds. The order dated

5/11/2012, passed by Civil Judge, Junior Division, Pathri

below Exh.48 in Regular Darkhast No.16/2012 (Old Special

Darkhast No.1/2003) is hereby set aside. It has been seven

years since the impugned order has been passed, it would not

be desirable to observe that the application moved by the

petitioners was in the nature of an obstruction to the

execution of the decree and order passed below the said

application, being a deemed decree and is liable to be assailed

in appeal before the District Court. The respondent No.1 is at

liberty to take appropriate recourse to a legal remedy, as may

be advised, for enforcement of his rights under the alleged

agreement for sale dated 9/3/1997.

( R. G. AVACHAT ) JUDGE

fmp/-