Lachmansingh Rampratapsingh ... vs M/S Rajeshwar Bhimrao Patil And ...
2021 Latest Caselaw 2707 Bom

                                                    Writ Petition No.4493/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                      WRIT PETITION NO.4493 OF 2020



 Lachmansingh s/o Rampratapsingh Hajari
 Died through L.R.
 Subhash s/o Lachmansingh Hajari      ...PETITIONER

          VERSUS

 M/s Rajeshwar Bimrao Patil & Company
 and others                           ...RESPONDENTS

                             .......
 Petitioner Subhash Lachmansingh Hajari present in person
 Shri A.D. Ostwal, Advocate for respondent No.3.
                             .......

                                  CORAM :       R. G. AVACHAT, J.

                                  DATE :        10th FEBRUARY, 2021

 ORDER:

The challenge in this Writ Petition is to the order

dated 28/11/2019, passed by Civil Judge, Senior Division,

Ambajogai, below Exh.322 in decree execution proceedings,

being Regular Darkhast No.47/2012. By the impugned order,

the application preferred by Judgment Debtor No.3 for

directions not to release the sum of Rs.3,69,100/- in favour of

the Decree Holder (D.H.) came to be allowed. The D.H., one

of the legal representatives of the original D.H. is, therefore,

before this Court.

Writ Petition No.4493/2020 :: 2 ::

FACTS :-

2. The father of the petitioner had filed the suit,

Special Civil Suit No.38/1988 for declaration that sale deed

dated 13/7/1976 executed in favour of the respondents was

nominal and sham. It was a transaction in the nature of a

mortgage. The suit came to be decreed. It appears that, the

decree passed in the said suit has attained finality. So has

been observed by this Court on 19/8/2016 in Writ Petition

No.5277/2016. Learned counsel for the respondent/ J.D. also

could not show that the decree passed in Special Civil Suit

No.37/1988 is under challenge and there is a stay to the

execution thereof.

3. The petitioner (D.H.) initiated execution

proceedings. A reconveyance deed came to be executed in

favour of the D.H. The deed was executed by Court official

appointed by Court in execution proceedings. As per the

terms of the decree, the deed of reconveyance was to be

executed by the J.D. at his cost. Since the J.D. did not pay/

deposit the cost required for execution of a deed of

reconveyance, it was the petitioner (D.H.) who paid the sum

of Rs.3,69,100/- for execution of reconveyance deed in his

favour. The D.H. later on moved the application for recovery

of the said amount from the J.D. It is only when the warrant

Writ Petition No.4493/2020 :: 3 ::

of attachment of the immovable property of the J.D. was

issued, the sum came to be deposited in the Court.

4. The aforesaid facts undoubtedly indicate the

petitioner to be entitled to receive the said amount. The J.D.

filed the application Exh.322 on the ground that the decree

has been under challenge in two suits and the Writ Petition

preferred by them against the decree and execution of

reconveyance in favour of D.H. Learned counsel for the J.D.

would submit that original D.H. has six Class-I heirs. The

present petitioner is only one of them. He would at the most

be entitled to 1/6th share in the amount. Learned counsel

would also submit that the petitioner be directed to give Bank

guarantee, if the Court directs to pay him the amount.

5. It is reiterated that, the decree appears to have

attained finality. It was the petitioner who had deposited the

amount required for execution of the reconveyance deed,

when it was responsibility of the J.Ds. to pay the sum. The

petitioner is, therefore, entitled to get back his amount which

has been recovered from the J.Ds. after issuance of warrant of

attachment of immovable property. It appears that, the

petitioner has been pursuing the execution proceedings.

Other legal representatives of original D.H. are not before this

Court. The Court's direction to pay the amount to the

Writ Petition No.4493/2020 :: 4 ::

petitioner would absolve the J.Ds. of their liability towards

other L.Rs. Of original D.H. It will be an issue inter-se legal

representatives of original D.H. Since it was the petitioner

who has deposited the amount, it is he who would be entitled

to get it back. The Executing Court ought to have rejected

the application Exh.322. Interference with the impugned

order is, therefore, called for.

6. The order impugned in this Writ Petition is set

aside. The Executing Court shall pay the amount of

Rs.3,69,100/- to the petitioner on his furnishing a solvent

surety besides an undertaking to pay back the amount to the

Court, if so directed. Writ Petition stands disposed of in

aforesaid terms.

( R. G. AVACHAT ) JUDGE

fmp/-