Shaikh Abdul Kadir Abdul Aziz vs Maqsood Ali Mohad. Mozam Ali And ...
2021 Latest Caselaw 10953 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        912 SECOND APPEAL NO.171 OF 2021


                          SHAIKH ABDUL KADIR ABDUL AZIZ
                                      VERSUS
               MAQSOOD ALI MOHAD. MOZAM ALI AND OTHERS
                                         ...
                     Mr. A.M. Gholap, Advocate for the appellant
                                         ...

                                   CORAM :     SMT. VIBHA KANKANWADI, J.

                                   DATE :      12th AUGUST, 2021.


PER COURT :



1              Heard learned Advocate for the appellant.


2              It appears that the present respondent No.1 had raised objection

under Order XXI Rule 97 of the Code of Civil Procedure, 1908 before the

executing Court in Regular Darkhast No.284/2014. The said objection was

summarily dismissed by the learned executing Court. Present respondent

No.1 filed Regular Civil Appeal No.211/2019. It was heard by learned

District Judge-10, Aurangabad. The appeal has been allowed. The order

below Exh.13 in Regular Darkhast No.284/2014 dated 08.09.2017 is quashed

and set aside, and it appears that the learned District Judge-10, Aurangabad

2 SA_171_2021

has directly jumped to the conclusion that the Judgment and Decree, that

was passed in the suit i.e. Regular Civil Suit No.1214/2012 on 10.10.2013, is

not binding on the obstructionist. The question, that is, required to be

considered is - Whether without giving the opportunity of leading evidence

the learned First Appellate Court could have directly come to that

conclusion ? No evidence was allowed to be led at the appellate stage as it

appears from the impugned Judgment. The question would be, when the

obstructionist had come in possession and through whom and then it wants

to be decided, as to whether the decree would be binding on him or not ?

Definitely, substantial question of law is appearing in this case, deserving the

admission of the Second Appeal. Accordingly, it is admitted. Following are

the substantial questions of law.

1 Whether the learned District Judge-10, Aurangabad erred in directly jumping to the conclusion that the Judgment and Decree passed in the suit is not binding on the obstructionist without giving an opportunity of leading evidence to the parties before the executing Court ?

2 Whether the learned District Judge-10, Aurangabad has adopted proper procedure ?

3 Whether the appeal deserves remand and interference ?

3              Issue notice to the respondents. Though the learned Advocate





                                          3                                       SA_171_2021

appearing for the appellant is submitting that respondent Nos.2 to 6, who

were the original Judgment Debtors, were not party to the First Appeal, yet,

this Court feels that when they were party before the executing Court, then

they are required to be heard here also. Notice to be issued to all the

respondents, returnable on 30.09.2021.

4                Call Record and Proceedings.




                                                ( Smt. Vibha Kankanwadi, J. )


agd