Deepak Rajaram Gopal And Ors vs Jashwant P. Thacker Decd. And Ors
2021 Latest Caselaw 11700 Bom

Tandale                                                          9-WP-707-2020.odt



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO.707 OF 2020

Deepak Rajaram Gopal and Ors.                         ... Petitioners
     V/s.
Jashwant P. Thacker
Deceased and Ors.                                     ... Respondents


Mr.Sachin Chavan, Advocate for Petitioners.
Mr.Priyadarshan V. Shah, Advocate for Respondent No.6.


                                    CORAM : A.S. GADKARI, J.

DATE : 24th August, 2021.

P.C. :

1. By the present Petition under Article 227 of the Constitution of

India, the Petitioners a third party claiming to be obstructionist, have

impugned Order dated 6th January 2020 passed below Exh.63 in MARJI

Application No.21 of 2016 in Execution Application No.264 of 2010 in L.E. &

C. Suit No.499/545 of 1987, thereby rejecting the said Application by the

learned Judge, (C.R. No.23), Small Causes Court, Mumbai.

2. Heard. Mr. Chavan, learned counsel for the Petitioners and Mr.

Shah, learned counsel for the Respondent No.6. Perused record.

3. The record indicates that, in pursuance of the Judgment and

Decree dated 30th November, 2009, passed by the Appellate Court in Appeal

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No.798 of 2004, the Respondents filed Execution Application. The Judgment

and Decree passed by the Appellate Court was affirmed by this Court by its

Order dated 5th April 2010 in Civil Revision Application No.101 of 2010. The

Respondents thereafter executed the said Decree by filing Execution

Application No.264 of 2010 and by following due process of law. The

possession of the suit premises has been taken through the bailiff of the Court

appointed in that behalf. The Petitioners have thereafter filed MARJI

Application No.21 of 2016, claiming to be third party and with a further

contention that, the Decree is executed on wrong premises.

4. It is the settled position of law that, if a decree is executed by

adopting due process of law through the Court, it is presumed that, it is

executed on the premise mentioned in the Judgment and Decree passed by

the Competent Court of jurisdiction. By the Application filed below Exh.63,

the Petitioners were intending to lead evidence to substantiate their claim.

The Trial Court has recorded finding that, there is collusion between the

Petitioners and Original Defendants. The petitioners are intending to conduct

a full fledged enquiry beyond the scope of Decree. It is further observed that,

if the said Application would have been allowed, serious prejudice, loss and

inquiry would have been caused to the original Plaintiffs.

5. I find substance in the observations made by the Trial Court.

Even otherwise, the suit was of the year 1987 and the Respondents are facing

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litigation for last more than 30 years. The Petitioners in connivance with the

original Defendants are trying to frustrate the Decree passed in the year 2009

by adopting dilatory tactics and filing frivolous Applications. The contentions

raised by the Petitioners are certainly beyond the scope of Decree and can not

be accepted. The impugned Order is purely an interlocutory Order.

6. The Supreme Court in the case of Shalini Shyam Shetty & Anr.

Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has enumerated the

principles in the exercise of High Court's jurisdiction under Article 227 of the

Constitution of India. It is held that, the High Courts cannot, at the drop of a

hat, in exercise of its power under Article 227 of the Constitution, interfere

with the Orders of tribunals or courts inferior to it. Nor can it, in exercise of

this power, act as a court of appeal over the orders of the court or tribunal

subordinate to it. That, the High Court can interfere in exercise of its power

of superintendence when there has been a patent perversity in the orders of

the tribunals and courts subordinate to it or where there has been a gross and

manifest failure of justice or the basic principles of natural justice have been

flouted.

It is further held that, in exercise of its power of superintendence,

the High Court cannot interfere to correct mere errors of law or fact or just

because another view than the one taken by the tribunals or courts

subordinate to it, is a possible view. In other words, the jurisdiction has to be

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very sparingly exercised. That, the power of interference under this Article is

to be kept to the minimum to ensure that the wheel of justice does not come

to a halt and the fountain of justice remains pure and unpolluted in order to

maintain public confidence in the functioning of the tribunals and courts

subordinate to the High Court.

The afore-stated view expressed in the case of Shalini S. Shetty

(Supra) has been further affirmed by the larger Bench of the Supreme Court

in the case of Radhey Shyam & Anr. Vs. Chhabi Nath and Ors. Reported in

(2015) 5 SCC 423.

7. After taking into consideration the entire material available on

record, this Court is of the view that, the Trial Court has not committed any

error either in law or on facts while passing the impugned Order dated 6 th

January 2020 below Exh.63. This Court finds that, there are no merits in the

Petition. Petition is accordingly dismissed summarily.

[A.S. GADKARI, J.] Digitally signed by MANOJ R TANDALE MANOJ R Date:

TANDALE 2021.08.26 18:12:40 +0530