Bombay High Court
Sohan Manohar Sontakke And Ors vs Sachin Padmakar Sontakke on 15 February, 2021
Bench: Nitin W. Sambre
19.515.20 wp (2).doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 515 OF 2020
Sohan Manohar Sontakke and Ors ....Petitioners
V/s.
Sachin Padmakar Sontakke .....Respondent
Mr. Chetan G. Patil a/w Mandar Bagkar for the Petitioners
Mr. Sandeep S. Koregave for Respondent
CORAM : NITIN W. SAMBRE, J.
DATE: FEBRUARY 15, 2021.
P.C.:
1] This Petition is by Judgment-Debtor in Special Civil Suit No.
75 of 2001 who have suffered a Decree for specifc performance on
16/12/2008.
2] Respondent no. 1 Decree-holder initiated execution
proceedings based on the Decree for specifc performance passed by
Jt. Civil Judge Senior Division, Kolhapur in the Court of Jt. Civil
Judge Junior Division, Panhala through Special Darkhast No. 15 of
2009. In the said execution proceedings, Decree-holder sought
extension of time to deposit amount of consideration as was directed
19.515.20 wp (2).doc
under the Decree thereby condoning the delay.
3] Application Exhibit 47 & 48 to that effect came to be fled
(closed) without any execution by Civil Judge Junior Division,
Panhala vide Order dated 09/08/2012.
4] In the aforesaid background, Decree-holder took out execution
proceedings Darkhast No. 734 of 2012 in the Court of Civil Judge
Senior Division, Kolhapur.
5] Petitioner hereto fled their objection to the same. Petitioner
thereafter moved an Application under Section 39 (4) of the CPC
thereby raising an objection to the jurisdiction of the Court of Civil
Judge Senior Division, Kolhapur as said Court lacks jurisdiction to
execute the Decree as the property is situated outside the legal
limits of its jurisdiction i.e. Panhala.
6] Vide Order impugned dated 07/02/2019, Court of 4 th Jt. Civil
Judge Senior Division, Kolhapur rejected the said objection passed
19.515.20 wp (2).doc
below Exh. 39. As such, this Petition.
7] Submissions of learned counsel for the Petitioner are, though
the Decree for specifc performance was passed by Court of Civil
Judge Senior Division Kolhapur, the Suit property is situated within
the jurisdiction of the Court at Panhala which comes under the
Judicial district of Kolhapur. That being so, execution proceedings
are maintainable at Panhala and not at Kolhapur. Learned counsel
so as to substantiate his claim has drawn support from the object of
bringing Sub-Section 4 of Section 39 of the Code of Civil Procedure,
1908 by way of amendment of 2002.
8] Counsel for the Respondent Decree-holder would support
order impugned as according to him, there is no illegality.
9] It is not in dispute that the Decree in execution was passed by
Court of Civil Judge Senior Division, Kolhapur even though property
is situated at Panhala. It is required to be noted that initially
execution proceedings were preferred before Panhala Court i.e. Civil
Judge Junior Division, Panhala to which Petitioner Judgment-debtor
19.515.20 wp (2).doc
has raised an objection as to its maintainability. Apart from above,
Petitioner was seeking extension of time to deposit the amount as
was directed under the Decree. Said extension can be granted by the
Court who has passed the Decree.
10] As such, Respondent was justifed in approaching the Court
who has passed the Decree for its execution having regard to
provisions of Section 37 (explanation) and Section 38 of the CPC.
Court of Civil Judge Senior Division at Kolhapur will not cease to
have jurisdiction to execute the Decree merely on the ground that
the jurisdiction to try the Suit has been transferred to other Court.
Of Course the Court which passes the Decree has every power and
authority to execute the same as is provided under Section 38 of the
CPC.
11] In that view of the matter, no error of law could be noticed in
the order impugned. Petition as such fails, stands dismissed.
[NITIN W. SAMBRE, J.]
