Mrs. Indubai Bhiku Dumale And Anr vs Smt. Thakubai Revali Dhumale ...
2021 Latest Caselaw 3410 Bom

                                                                   4.7107.18 wp.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO. 7107 OF 2018

      Mrs. Indubai Bhiku Dumale and another                       ....Petitioners

              V/s.

      Smt. Thakubai Revali Dhumale                                .....Respondents
      (Decd) Through LR's and another

      Ms. Ruchita Kadam i/b Mr. Abhishek Deshmukh for the Petitioners
      Mr. Dilip Bodake for Respondents


                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     FEBRUARY 23, 2021.

      P.C.:

      1]      In R.C.S. No. 101 of 1992 initiated by the Respondent Housabai,

a Decree for partition came to be passed on 30/12/2003 which was

confirmed in Appeal.

2] Claim of the Petitioner in the execution proceedings is, both of

them need to be added as parties as they are in possession of the

property by virtue of Will Deed executed in their favour. Mutation

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entry dated 23/09/2005 is sought to be relied on.

3] So as to substantiate the contention, learned counsel for the

Petitioner would draw support from the Judgment of the Apex Court

in the matter of Har Vilas Vs. Mahendra Nath and Others [(2011) 15

Supreme Court Cases 377] so as to claim that Petitioner should have

been added as party to the execution proceedings pursuant to

provisions of Order XXI Rule 35, 97 & 101 of the Code of Civil

Procedure, 1908.

4] If the aforesaid contentions are appreciated qua the order

impugned whereby the prayer is rejected by the Executing Court for

the impleadment, the fact remains that husband of the Petitioner no.

1 and father of Petitioner no. 2 is party to the Decree in question and

has not chosen to prefer any Second Appeal.

5] Apart from above, on facts, Petitioner is unable to establish her

right in the property by virtue of alleged Will Deed and the mutation

entry as neither Will Deed is produced nor the mutation entry could

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be readable.

6] In the aforesaid background, order impugned passed by the

Executing Court rejecting the prayer for impleadment appears to be

justified.

7] In that view of the matter, no case for interference is made out.

Petition fails, stands dismissed.

[NITIN W. SAMBRE, J.]