Bombay High Court
Akbarsaheb Amirsaheb Kokani Decd ... vs Gulamgous Amirsaheb Kokani Decd ... on 15 February, 2021
Bench: Nitin W. Sambre
This Order is modified/corrected by Speaking to Minutes Order dated 26/02/2021
26.5164.20 wpst.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 5164 OF 2020
WITH
WRIT PETITION NO. 3580 OF 2020
Akbarsaheb Amirsaheb Kokani ....Petitioners
Decd Thru LHRs and others
V/s.
Gulamgous Amirsaheb Kokani .....Respondents
Decd and others
WITH
INTERIM APPLICATION (ST) NO. 197 OF 2021
IN
WRIT PETITION (ST) NO. 5164 OF 2020
Kulsumbi Akbar Kokani since ....Applicants
deceased through Lrs
V/s.
Gulamgous Amirsaheb Kokani .....Respondents
Decd and others
Mr. A. S. Khandeparkar i/b Mr. Dilip Bodake for the Petitioner in
both Petitions
Mr. R. D. Soni a/w Mr. V. R. Kasle i/b Ram & Co. for Respondent No.
10C
CORAM : NITIN W. SAMBRE, J.
DATE: FEBRUARY 15, 2021.
This Order is modified/corrected by Speaking to Minutes Order dated 26/02/2021
26.5164.20 wpst.doc
P.C.:
1] By consent of the respective counsel and for the sake of
convenience, facts of Writ Petition No. 5164 off 2020 are taken up for
consideration for deciding all these matters.
2] This Petition is by Decree holders who are also identifed as
legal heirs of Judgment Debtor Nos. 2, 6 to 10.
3] It is the case of the Petitioner that aforesaid Judgment-Debtors
died issue less and a public notice was issued pursuant to the
provisions of Code of Civil Procedure, 1908. Since no objections were
received, considering their relation with Defendant Judgment-Debtor,
they were permitted to be impleaded as legal heirs of the said
Judgment-Debtors.
4] There is one more proceedings for execution of the partition
decree which is persuaded through RD No. 223 of 1981. Application
Exhibit 1 came to be moved by the Petitioner decree holder in RD No.
This Order is modified/corrected by Speaking to Minutes Order dated 26/02/2021
26.5164.20 wpst.doc
223 of 1981 arising out of partition decree in RCS No. 102 of 1963. By
the said Application, Petitioners prayed that having regard to their
status as legal heirs of Judgment-Debtor Nos. 2, 6 to 10 as per order
dated March 26, 2009 passed below Exhibit 28 they are entitled to
have share of the said deceased Judgment-Debtors.
5] Said Application came to be rejected vide order dated 21st
March 2020.
6] Heard respective counsel at length on the legality and validity of
the order impugned.
7] Both the sides agree that prayer of Petitioner for allocation of
share of Judgment-Debtor cannot be passed under section 47 of the
Code of Civil Procedure, 1908.
8] However it appears that Executing Court while dealing with the
prayer of the Petitioner has not taken into account provisions of
This Order is modified/corrected by Speaking to Minutes Order dated 26/02/2021
26.5164.20 wpst.doc
Section 49 Order 21 Rule 16 and Rrder 21 Rule 35 of the CPC. Order
impugned is in total ignorance of the aforesaid provisions which
directly deals with the issue which was canvassed before the
Executing Court.
9] In the aforesaid background, Petitions are allowed. Order
impugned dated 21st January 2020 passed by Jt. Civil Judge, Senior
Division, Nashik in RD No. 223 of 1981 and RD No. 226 of 1981 is
hereby quashed and set aside.
10] The executing court is directed to hear and decide the aforesaid
proceeding afresh having regard to above referred provisions of CPC
as expeditiously as possible and in any case within period of 12
weeks from the date of appearance of the parties.
11] Parties hereto agree that they shall appear before the executing
court on 22/02/2021.
This Order is modified/corrected by Speaking to Minutes Order dated 26/02/2021
26.5164.20 wpst.doc
12] Needless to clarify that all contentions are kept open.
13] In view of above, all pending applications also stand disposed
of.
[NITIN W. SAMBRE, J.]
