Bombay High Court
Shankar Laxman Johare Thr. L.Rs. ... vs Bhaurao Laxman Johare on 9 August, 2021
Bench: S. M. Modak
sa.276.12 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Application [CAS] No.440 of 2021
in
Second Appeal No.276 of 2012
Shankar Laxman Johare [Dead] through L.Rs.
vs.
Bhaurao Laxman Johare
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Ms. Trishala Dhait h/f Shri Abhay Sambre, Advocate for the
Applicant/Respondent.
Shri S.D. Malke, Advocate for the Non-Applicants/Appellants.
CORAM : S.M. MODAK, J.
DATE : 9th AUGUST, 2021.
Heard both the sides.
02] This Court has accepted the statement made
by the learned Advocate for the appellants about not
creating third party interest during pendency of this
appeal on 05/09/2013. On that statement, the execution
of the judgment and decree was stayed. Surprisingly,
appellant No.8-Kailas Johare executed a registered sale-
deed on 14/07/2020 in respect of part of the suit land.
It's copy is filed on record. Vide order dated 02/08/2021,
this Court has expressed an opinion about vacating the
stay.
03] Appellant No.8, through his learned Advocate,
has filed a reply and he has not disputed the sale-deed.
He has tried to explain under what circumstances, he
has executed the sale-deed. My attention is also
brought to the averments of internal page 3 of the sale-
deed, wherein the vendor i.e. appellant No.8 has stated
that the property is not subject to any litigation.
sa.276.12 2/4
Respondent Nos.1 to 7 have filed a separate reply and
submitted that as they have not committed breach of
the undertaking, stay in their favour may not be
vacated.
04] It is also submitted that appellate No.8 also
breached the undertaking before the first appellate
Court. Certainly, the stay granted in favour of appellate
No.8 needs to be vacated. Appellate Nos.1-a to 1-g are
the legal representatives of deceased appellate No.1-
defendant No.1 Shankar. As per the decrees of trial
Court and the first appellate Court, plaintiff-Bhaurao and
defendant No.1-Shankar were held entitled to ½ share
in the suit land. My attention is drawn to the area sold
by appellant No.8 from his share allotted to him from
the suit land. It is mentioned on page 1 of the sale-
deed.
05] It is difficult for this Court to make any
comment about what sort of arrangement the
appellants have made in respect of the suit land. I am
not inclined to vacate the stay so far as the other
appellants are concerned, because there is no grievance
that they have breached the undertaking. However, as
the respondent has made a grievance about such sort
for the first time before the Court and earlier before the
first appellate Court compels this Court to pass certain
strict directions. The remaining portion as shown in the
sale-deed coming to the share of appellant No.1 needs
to be attached. At the same time, the remaining area
of the suit land also needs to be attached (the Court is
not aware what sort of distribution the appellants have
made amongst themselves). Hence, this Court is of the
opinion to attach the remaining area of the suit land. It
sa.276.12 3/4
is also necessary to inform the revenue authority about
the same, so that if there will be an attempt in future on
the part of the appellants to sell the land, the
prospective purchaser will come to know about this fact.
These circumstances compel this Court to pass the
following order :
(i) Stay to the execution of the decree passed, so
far as appellant No.8 Kailas Johare is
concerned, is vacated.
(ii) The remaining portion coming to the share of
appellant No.8 from the suit land, as described
in the sale-deed, is attached during pendency
of the appeal.
(iii) Appellant No.8 is directed to inform this fact to
the concerned revenue authority and the
revenue authority to make mention of this
fact on 7/12 Extract.
(iv) Appellant Nos.1-a to 5 and 7 and the legal
representatives of appellant No.6 are directed
to inform the revenue authority that their
shares are also attached by this Court during
pendency of the appeal.
(v) The revenue authority is directed to take note
on 7/12 Extract.
(vi) All the appellants are directed to comply with
these directions and produce a copy of 7/12
Extract having said endorsement.
(vii) It is made clear that the appellants, who were
cultivating the land, may continue the
cultivation.
(viii) The application is allowed and disposed of
accordingly.
sa.276.12 4/4
Civil Application Nos.465, 466 & 467 of 2021 :
Appellate No.6 expired on 22/04/2021. For
the reasons stated in the applications, the steps could
not be taken for bring the legal representatives on
record. The reasons are convincing. A copy of death
certificate issued by the Gram Vikas Adhikari, Gram
Panchayat, Andera is produced on record. It is marked
as Annexure-X.
In view of that, the following order is passed :
(i) The delay caused in filing the applications for
setting aside abatement and for bringing
legal representatives on record, is condoned.
(ii) Abatement of appeal, so far as appellate No.
6 is concerned, is set aside.
(iii) His legal representatives be brought on
record.
(iv) Amendments be carried out.
(v) The applications are disposed of accordingly.
(vi) The matter be kept on 8th September, 2021.
JUDGE
*sandesh
