Bombay High Court
Bhimashankar Dagadu Shete vs Vijaykumar Jagadishchandra Wai ... on 15 February, 2021
Bench: C.V. Bhadang
9 cra 24-20=
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sneha CIVIL APPELLATE JURISDICTION
N.
Chavan CIVIL REVISION APPLICATION NO. 24 OF 2020
Digitally signed
by Sneha N.
Chavan Bhimashankar Dagade Shete .. Applicant
Date: 2021.02.15
17:55:47 +0530 V/s.
Vijaykumar Jagdishchandra Wai & Ors. ..Respondents
----
Mr. Sujeet Bhugade for the Applicant.
Mr. Sarthak Diwan i/b Ashutosh Kulkarni for the Respondent No.2.
----
CORAM : C.V. BHADANG, J.
DATE : 15th FEBRUARY, 2021
P.C.
1. The challenge in this revision application is to the orders
dated 29.06.2019 passed by the Executing Court in Regular
Darkhast No. 27 of 2015 below Exhibit 18 and Exhibit 39. By the
impugned order below Exhibit 39, the Executing Court has disposed
of Dharkhast with liberty to the applicant (decree holder) to file a
fresh execution after decision of the application Exhibit 18. The
applicant is the landlord.
2. A suit came to be filed by the applicant against the judgment
debtor No.1 in which a consent decree was passed on 21.04.2015.
Sneha Chavan page 1 of 3
9 cra 24-20=
The applicant sought the execution of the said decree in which the
contesting respondent (judgment debtor No.2) filed application
Exhibit 18 purportedly under Order XXI Rule 97 of the Code of Civil
Procedure, 1908 on the ground that the premises were tenanted to a
partnership firm of which the judgment debtor No.2 is a partner. It
was also contended that the judgment debtor No.2 is in actual
possession of the suit premises.
3. It appears that the executing court by an order below
application Exhibit 18 directed the same to be registered. By a
separate order of even date below application Exhibit 39, the
Darkhast is disposed of as aforesaid.
4. The Application Exhibit 39 was filed by the judgment debtor
No.2. By that application, all that the judgment debtor No.2 prayed
was to register the application under Order XXI Rule 97 at Exhibit
18 as per Rule 337 and 339 of the Civil Manual. It can thus be seen
that all that the judgment debtor No.2 required was to decide his
application under Order XXI Rule 97, which has to be decided in the
execution application. It is trite that all the questions including
questions relating to right, title or interest in the property, arising
between the parties have to be decided by the Executing Court as
Sneha Chavan page 2 of 3
9 cra 24-20=
per the provisions of Rule 101 of Order XXI of Code of Civil
Procedure, 1908. It is, therefore, difficult to see as to how the
execution application could have been disposed of.
5. In the result, the revision application succeeds. The impugned
orders dated 29.06.2019 below application Exhibit 18 and Exhibit
39 are hereby set aside.
6. The execution application is restored to file, for disposal
according to law alongwith application Exhibit 18.
7. The rival contentions of the parties are left open.
8. In the circumstances, there shall be no order as to costs.
C.V. BHADANG, J.
Sneha Chavan page 3 of 3
