Girish S/O Ramshankar Upadhyay ... vs Anantrai S/O Ramshankar Upadhyay ...
2021 Latest Caselaw 10611 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH, NAGPUR

                                   SECOND APPEAL NO. 147/2021
                                             WITH
                                   SECOND APPEAL NO. 148/2021
Girish s/o Ramshankar Upadhyay and another. Versus Sharad s/o Ramshankar Upadhyay and
others.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                               Court's or Judge's Orders
or directions and Registrar's orders.
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                  Shri M.G. Bhangde, Sr. Advocate a/b Shri R.M. Bhangde, Advocate for appellants in both
                 Second Appeals.
                 Shri A.A. Dhawas, Advocate for R-1, 4,6 and 8 in S.A. No. 147/2021 and R-1, 3, 4 and 6
                 in S.A. No. 148/2021.
                 Shri R.D. Hajare, Advocate for Res. Nos.2(a), 2(b), 2(c), 3, 5(a) 5(b) and 9 in S.A.
                 147/2021 and Res. 2(a, b), 7(a) 8 and 9 in S.A. no. 148/2021.
                 Shri S.U. Kothekar, Advocate for Res. No.7 in S.A. No. 147/2021
                 Shri S.U. Kothekar, Advocate for Res. No. 5 in S.A. No. 148/2021.

                 CORAM : S.M. MODAK, J.

DATE : 09/08/2021

Heard learned Senior Advocate Shri M.G. Bhangde for the appellants/judgment debtor Nos. 4 and 9. The impugned orders were passed by the District Court. Before him, two orders passed on 17/03/2018 by Executing Court, Wardha in Final Decree Proceeding Nos.09/2003 and 10/2003 are challenged. By the said orders, the Executing Court has ordered sale of the property by issuing proclamation.

2. When these orders were challenged before the District Court at the instance of present appellants, their appeals were dismissed and that is how the present Second Appeals.

3. The learned Senior Advocate Shri M.G.Bhangde has challenged both these orders on various grounds including

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non-compliance of the mandatory procedure. According to him, the Executing Court was wrong in accepting the Court Commissioner's Report. By the said report, the learned Court Commissioner has reported that properties are incapable of partition and hence be sold. According to learned Senior Advocate Shri M.G. Bhangde, the report cannot be accepted as it is and the Executing Court is expected to give its opinion. For that purpose he relied upon the provisions of Order XXVI Rules 13 and 14 of the Code of Civil Procedure, 1908. According to him, not taking any objection on the said report, on the part of the present appellants do not amount to admitting the said report.

4. Another limb of argument is regarding not following the procedural requirement when the decree holder applied for issuing directions to sell the property. He took two objections. First is that the mandatory procedure is not followed and Second is that opportunity of hearing is not given. Even he challenged the findings of the First Appellate Court on the point of giving no objection by these appellants. In fact, it is the judgment debtor No.1 and 6 who have not objected for withdrawal of one application and whereas the First Appellate Court considered it as no objection on behalf of these appeals. He invited my attention to the provisions of Order XXI Rules 64 and 66 of the Code of Civil Procedure,1908 and under Section 2 of the Partition Act, 1893. According to him, the power to order for sale under those rules can be there only when money decree is to be executed. Whereas, the present decree put to execution is a partition decree. According to him, sale can be ordered under Section 2 of

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the Partition Act,1893 only when there is a request on behalf of the share holders to the extent of one moiety. Moiety means share holders to the extent of 50%.

5. He also submitted that unless final decree is drawn, sale cannot be ordered for that purpose. He relied upon few of the judgments as follows --

[1] Bashiruddin Khwaja Mohiuddin Vs Binraj Murlidhar Shop Malkapur by Partners and others reported in 1987 Mh.L.J. 30 [2] Annasaheb Rajaram Nagane and another Vs Rajaram Maruti Nagane and others reported in 2001 (3) Mh.L.J. 53.

[3] Hasham Abbas Sayyad Vs Usman Abbas Sayyad and others reported in (2007) 2 SCC 355.

On the point of reading the report of the Commissioner, he relied upon the judgment reported in 2014 SCC OnLine Bom 3494 [Devidas s/o Nathuji Thakre and others Vs Gangadhar s/o Bhuraji Burange]. How the Court can exercise the power under Section 2 of the Partition Act he relied upon the judgment reported in 1949 Indian Law Reports 192 [Pannalal Datta Vs Hrishikesh Datta].

6. About documents annexed along with reply filed by the respondents, it is submitted that the respondents have not dealt with any of the objections taken on behalf of the appellants

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and the annexures are the various orders passed in the proceedings. There is no dispute that preliminary decree has been confirmed upto Hon'ble Supreme Court. About two orders passed by this Court in two of the writ petitions, it is submitted that this Court has not expressed any opinion about the merits of the matter.

7. He also submitted that the final decree needs to be engrossed on requisite stamp papers and it has not been done. He relied upon the provisions of Maharashtra Stamp Act.

8. After hearing the above submissions and perusal of the documents, the following are the substantial questions of law:

(a) Whether the First Appellate Court was right in accepting the Court Commissioner's Report without examining the Court Commissioner and by wrongly holding that not taking objection by these respondents amount to accepting the Court Commissioner's Report?

(b) Whether the First Appellate Court failed to give its own finding pertaining to acceptance of the Court Commissioner's Report ?

(c) Whether the First Appellate Court committed wrong in confirming the order thereby permitting sale of the property by public auction particularly when final decree has not been passed ?

(d) Whether the First Appellate Court committed wrong in observing that these appellants have not objected to the prayer for sale by treating the

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and 6 as given by these appellants?

(e) Whether First Appellate Court committed wrong in confirming the order of sale by not considering the provisions of Section 2 of the Partition Act ?

(f) Whether the First Appellate Court committed wrong in accepting the application on behalf of the decree holders thereby seeking any order for sale of the property even though that application was not signed on behalf of the decree holders and not verified?

9. Issue notices to the respondents.

10. Shri A.A. Dhawas, learned advocate waives notice for respondent Nos.1,4, 6 and 8 in S.A. No. 147/2021 and Respondent Nos. 1,3,4 and 6 in S.A. No. 148/2021.

11. Shri R.D. Hajare, learned Advocate waives notice for Respondent Nos. 2 (a to c) 3, 5(a, b) and 9 in S.A. No. 147/2021 and Res. Nos. 2(a), 2(b), 7(a) 8 and 9 in S.A. No. 148/2021.

12. Shri S.U. Kothekar, learned Advocate waives notice for Respondent No.7 in S.A. No. 147/2021 and Respondent No.5 in S.A. No. 148/2021.

13. Learned Senior Advocate Shri M.G. Bhangde has argued at length and hence it is decided to hear the matter finally at admission stage. The respondents have already filed documents. If anything remains, they are at liberty to file those

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documents.

14. Matter kept for arguments of the respondents on 24/08/2021 at 2.30 p.m.

15. The statement made on behalf of the learned Advocate on 28/07/2021 not to take any steps in pursuance of the impugned order to continue till next date.

JUDGE

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