Bombay High Court
Suhas Bansilal Gujarati Through ... vs Venkatraoji Hire Nagari Sahakari ... on 28 July, 2021
Bench: Nitin W. Sambre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3461 OF 2021
Shri. Suhas Bansilal Gujarati .... Petitioner
Vs.
Venkatraoji Hire Nagari Sahakari .... Respondents
Patsanstha Ltd. & Ors.
Mr. Chetan G. Patil for Petitioner
Mr. Rameshwar Gite for Respondent No. 1.
Coram : NITIN W. SAMBRE, J.
Date : 28TH JULY, 2021
P.C.:
1. The case of the Petitioner is, his father sold the property in
question on 10th December, 1997 in favour of Respondent No. 2 i.e.
Jagdish Jivandas Gupta. Since the said Sale-Deed was executed based
on the post-dated cheques which were dishonoured, the Sale-Deed
came to be set aside at the behest of father of the Petitioner in Regular
Civil Appeal No. 324 of 2005 on 7 th September, 2012 for non payment
of lawful consideration.
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2. I am informed that the said judgment is subject matter of
challenge in a Second Appeal in this Court at the behest of Respondent-
No.2, Jagdish Jivandas Gupta, however no interim relief is operating in
favour of said Appellant.
3. It appears that inspite of non payment of consideration,
Respondent No.2- Jagdish Jivandas Gupta mortgaged the suit property
in favour of Respondent No.1 and defaulted in repayment. As such, the
said property was attached in an execution proceedings of the judgment
delivered by the Co-operative Court in a dispute interse between the
bank and said purchaser Jagdish Jivandas Gupta. The property was
subjected to an auction on 27th June, 2018 and Sale Certificate is
issued on 6th May, 2019.
4. In the aforesaid backdrop, the Petitioner took out an
objection proceedings under Order 21, Rule 97 of Code of Civil
Procedure claiming that the original judgment debtor i.e. Respondent
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No. 2 was not having lawful title and has no authority to such act of
mortgaging the property is illegal. That being so, auction and the Sale
Certificate is required to be set aside.
5. The prayer for injunction based on above claimed to be
rejected. As such, this petition.
6. Issue notice to the Respondents for final disposal,
returnable on 6th September, 2021. In addition to service of notice
through Court, the Petitioner shall serve a private notice by Registered
Post A.D. and/or by Courier service and/or by hand delivery or by e-
mail/fax on the Respondent and shall file affidavit of service with
tangible proof before the returnable date.
7. Mr. Gite waives service of notice on behalf of Respondent
No.1.
8. Till the returnable date, status-quo be maintained in regard
to the title of the property.
( NITIN W. SAMBRE, J.)
