Bijlabai Dilip Shrikhande vs Vilas Laxmanrao Shrikhande
2021 Latest Caselaw 2972 Bom

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          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                      WRIT PETITION NO.4117 OF 2019

 Bijabai w/o Dilip Shrikhande                              Petitioner

          Versus

 Vikas s/o Laxmanrao Shrikhande & others                   Respondents


 Mr.S.S.Kazi, advocate for the Petitioner.
 Mr.P.V.Langhe, advocate for Respondents No.1 & 2.


                                 CORAM : V.K.JADHAV, J.

                                 DATE         : 15th February, 2021.

 PC :

 1                Heard fnally at the stage of admission by consent

learned Counsel for respective parties.

2 Even though the compromise was executed in the

pending execution way back in the year 2015, the petitioner

herein - original J.D. No.3 has challenged the said compromise on

the ground of fraud. According to the petitioner, the alleged

compromise did not bear her signature nor she is party to the

said compromise.

3 Learned Counsel for the petitioner submits that the

petitioner has specifcally raised a plea of fraud. The petitioner

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has not put her thumb impression on the said compromise.

Though it is a suit for partition and separate possession, the

petitioner is not getting any share in the said property in terms of

the said compromise. The learned Counsel submits that the said

compromise came to be efected behind the back of the

petitioner.

4 The learned Counsel for Respondents No.1 & 2-

original Decree Holders submits that the petitioner was party to

the suit as well as party to the execution petition. The learned

Counsel submits that on each and every page of the compromise

and below the compromise, the petitioner has put her thumb

impression and on page no.3 of the compromise, it has been

specifcally mentioned that the petitioner herein has given up her

claim. The learned Counsel submits that the same is for the

reason that petitioner's husband was party to the suit so also to

the execution petition and since he has been allotted share in the

property, the compromise is efected, as detailed above.

submits that as against the original judgment and decree, the

husband of the petitioner namely Dilip Shrikhande, who is also

party to the suit, has preferred an appeal before the District

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Court and the said appeal was dismissed in default. Said Dilip

Shrikhande (husband of the petitioner) has fled an application

for restoration of the appeal, however, the learned District Judge

has rejected the same. Being aggrieved by the same, the

husband of the petitioner has preferred Writ Petition No.7955 of

2013. The said writ petition was withdrawn with the statement

that the parties have arrived at amicable settlement. The said

statement was made on behalf of husband of the petitioner and

it has been so recorded by this Court in the order dated 24 th

January, 2014, while disposing of Writ Petition No.7955 of 2013.

The learned Counsel submits that in all probability, the theory of

alleged fraud is imaginary one and the petitioner, with some

ulterior motive, has fled the present writ petition.

6 On going through the execution petition so also the

compromise, it appears that the petitioner is party to the suit

and execution petition so also to the compromise as J.D. No.3. It

appears that husband of the petitioner is also party to the

execution petition as J.D.No.2. I have carefully gone through the

order dated 24th January, 2014, passed by this Court

(Coram: S.V.Gangapurwala, J.) in Writ Petition No.7955 of

2013. It appears that husband of the petitioner has withdraw the

said writ petition by making a statement that the matter has

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been amicably settled between the parties. It, thus, appears that

though the compromise is signed by all the parties, especially

the petitioner has put her thumb impression on each and every

page and further there is specifc clause no.3 in the compromise

noting that she has given up her claim, it appears that the

petitioner with some oblique motive has preferred this writ

petition. It appears that in a suit for partition and separate

possession where husband of the petitioner is also party, share

has been allotted to the decree holder so also J.D.Nos.1 and 2,

who are the real brothers of decree holder and in view of the

same, the petitioner, who happened to be the wife of J.D.No.1,

has given up her claim in respect of one property, which seems

to have been purchased in her name. In view of the same, I do

not fnd any substance in this writ petition.

 7                Writ Petition is hereby dismissed.



                                                        (V.K.JADHAV)
                                                           JUDGE

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