Chanda Alias Chandrakala Kondiba ... vs Anant Kondiba Borgaonkar And Ors
2021 Latest Caselaw 2511 Bom

                                                                    (3) WP-8968-2014 draft.doc

BDP-SPS


  Bharat
  D.
  Pandit                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
 Digitally signed
 by Bharat D.
 Pandit
 Date:
 2021.02.09



                                    WRIT PETITION NO. 8968 OF 2014
 11:16:52 +0530




                    Chanda alias Chandrakala
                    Kondiba Borgaonkar                       ..... Petitioner.
                               V/s
                    Anant Kondiba Borgaonkar and Ors         ..... Respondents.

                    ----
                    Mr. Purshottam G. Chavan for the Petitioner
                    Mr. Sujeet R. Bugade for Respondent Nos. 3 to 5.
                    Mr. Vaibhav Gaikwad for Respondent Nos. 2, 6 to 8 and 13.
                    ----

                                      CORAM: NITIN W. SAMBRE, J.

DATE: FEBRUARY 08, 2021

(Note: This matter is kept for orders on 11/2/2021. Following portion was dictated in court on 8/2/2021) P.C.:-

1] The learned Counsel for the Petitioner submits that the issue

involved in the Petition is, whether at the stage of execution of

partition decree, the share of the decree holder/judgment debtor can

be modified in view of change in position of law. He would invite

attention of this Court to the factual matrix of the proceedings viz

deceased Kondiba, who expired in 1989, left behind the property

which is subject matter of the suit. In 1984, during his life time, suit

came to be filed for partition and separate possession which was

(3) WP-8968-2014 draft.doc

decreed in 2002.

2] The Petitioner/unmarried daughter of Kondiba was the

Respondent to First Appeals being First Appeal No.445 of 2002 and

461 of 2002 which were initiated at the behest of her brothers. The

said appeals came to be partly allowed vide judgment and decree

dated 20/2/2012 thereby modifying the decree passed in partition suit

in October 18, 2002. It is the case of the Petitioner that when the suit

came to be decreed, share which was given to the Petitioner was 184 th

whereas in the modified decree passed by the first appellate court, her

share was 924/126. When aforesaid proceedings were placed for

execution, Petitioner moved an application seeking modification of the

shares.

3] The moot question that requires to be dealt with by this Court is,

whether in execution proceedings in a partition decree, executing

court has power to modify shares thereby transgressing its limits by

travelling beyond the decree passed by the lower appellate court and

whether change in the position of law gives such lever to the executing

court?