Dr Farukh Fakruddin Motiwala vs Vimalchand Ghevarchand Jain And ...
2021 Latest Caselaw 4417 Bom

                                                                            WPST-95118.2020.doc

BDP-SPS


  Bharat
  D.
  Pandit                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
   Digitally signed
   by Bharat D.
   Pandit
   Date:
                                          CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION (ST) NO.95118 OF 2020
   2021.03.10
   19:13:27
   +0530




                      Dr. Farukh Fakruddin Motiwala                ...Petitioner
                               V/s
                      Vimalchand Ghevarchand Jain and Ors.         ....Respondent(s)
                      ----
                      Mr. A. V. Anturkar, Senior Advocate i/by Sugandh Deshmukh a/w Anil
                      Ahuja for the Petitioner.
                      Mr. Vimalchand Jain, Respondent No.1 in person.
                      ----
                                        CORAM: NITIN W. SAMBRE, J.

                                           DATE:     MARCH 10, 2021

                      P.C.:-

                      1]       This Petition is by a third party/stranger to a execution

proceeding questioning the order dated 14/09/2020 passed by the

learned District Judge-1, Niphad in Review Application No.08 of 2020

in Regular Civil Appeal No.125 of 2017.

2] By the said impugned order, objection to the execution of decree

for possession came to be rejected.

3] The facts necessary for deciding the present Petition are as

under:-

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4] Respondent/decree holder initiated Special Civil Suit No.330 of

1987 in the Court of Civil Judge, Senior Division, Nashik, alleging that

vide Sale Deed Dated 27/6/1978 one Eknath Jaju sold and

transferred the suit property to the decree holder.

5] Based on the said title, prayer for declaration of ownership,

possession and recovery of storage charges of ₹ 45,270/- was claimed.

The said suit came to be dismissed by the learned Civil Judge, Senior

Division, Niphad, District Nashik on 29/4/1999. The

Respondent/decree holder preferred Civil Appeal No.15 of 2001

before the Additional District Judge, Niphad. The said appeal also

came to be dismissed on 28/4/2006. However, it is held that decree

holders are entitled for the amount of ₹ 50,000/- with interest @ 6%

from 29/6/1978 till its realization. The second appeal was dismissed

on 20/2/2007 preferred by the Respondent. Aforesaid judgments

were subject matter of challenge in Appeal being Civil Appeal No.1784

of 2009 which was arising out of SLP (C) No. 12154 of 2007. The

Hon'ble Apex Court vide its judgment delivered on 23/3/2009 decreed

the entire suit claim. The suit claim reads thus :-

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"(a) That it be declared that the Defendant has no right, title or interest of any nature whatsoever in respect of the property, viz. being the plot of land admeasuring one acre four gunthas or thereabouts, that is 5,324 sq. yards (44 gunthas x 121 sq. yds) equivalent to 4451.53 sq. meters, along with 6 (six) corrugated iron-sheet godowns, one house and one well thereon, known as Kandechichawli situated at Gram Panchayat at Nos. 753 to 761 in the village Saykheda, Sub-

District Niphad, District Nashik or say part thereof, or to store or keep any goods, articles or things therein or to use, enter upon or remain upon the said property or any part thereof, and that the Defendant is in wrongful use and occupation of the said property.

(b) That the Defendant be ordered to remove himself, his servants, agents and all his goods, articles and things from the said property.

(c ) That the Defendant by himself, his servants and agents or otherwise howsoever be restrained by a perpetual order and injunction of this honourable Court from in any manner storing or keeping any goods, articles or things or using, occupying or entering upon or remaining in use and occupation of the said property or any part thereof.

(d) That the Defendant be ordered and decreed to pay to the Plaintiffs the sum of Rs 45,270/-

being the arrears of storage charges and/or compensation for the period of three years prior to the institution of the suit at the rate of Rs 1,257.50 per month with interest on Rs 45,270/- at the rate of 18% per annum from the date of filing of the suit till the Defendant remove himself, his servants and agents and his goods, articles and things from

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the said property.

(e) That pending the hearing and final disposal of the suit, the court receiver or some other fit and proper be appointed Receiver of the said property, with all powers under Order 40, Rule 1 of the Code of Civil Procedure.

(f) That pending the hearing and final disposal of the suit, the Defendant by himself, his servants and agents or otherwise howsoever, be restrained by an order and Injunction of this Hon'ble Court, from in any manner, storing or keeping any goods, articles or things or using or entering upon or remaining in use or occupation of the said property or any part thereof.

(g) That pending the hearing and final disposal of the suit, the Defendant, his servants and agents or otherwise howsoever, be restrained by an order and Injunction of this Hon'ble Court from in any manner dealing with or disposing of, or alienating or encumbering or creating any right, title or interest in favour of any one in respect of the said property or any part thereof."

6] Based on the aforesaid decree, Special Darkhast No.2 of 2015

came to be initiated in the Court of Civil Judge, Senior Division,

Niphad in which, Petitioner invoked the provisions of Order 21 Rule

97, sub-rule (2) vide application/objection-Exhibit-66, alleging that

the portion of the suit property vide Sale Deed dated 19/7/2000 was

sold by Defendant Ramakant Jaju in favour of Sundari Pille who, in

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turn, sold the same to the Petitioner on 13/10/2006. Petitioner

claimed that Petitioner is a bonafide purchaser for value without

notice of the aforesaid proceedings, as such he should not be

dispossessed in execution of the decree.

7] The said objection-Exhibit-66 was rejected by a detail reasoned

order on 21/7/2017 passed by the Executing Court.

8] The Petitioner preferred Regular Civil Appeal No.125 of 2017.

The said appeal came to be partly allowed by setting aside the

aforesaid order passed below Exhibit-66, thereby remanding the

matter back to the Executing Court. Respondent herein preferred

Review Application No. 08 of 2020, seeking review of the aforesaid

order of remand on 24/2/2020. Vide order impugned dated

14/9/2020, Review Application came to be allowed and the order of

remand dated 14/1/2020 referred to above, came to be set aside and

the appeal was dismissed, thereby confirming the order passed below

Exhibit-66 in Special Darkhast No.2 of 2015.

9] The learned Senior Counsel Mr. Anturkar while questioning the

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legality of the order impugned would urge that the same is not

sustainable, as the order dated 14/1/2020 in Regular Civil Appeal

No.125 o 2017 was passed by the learned District Judge 2. According

to him, order on the Review Application, thereby allowing Review was

passed by District Judge - 1, which court was not manned by very

same judge who has passed the earlier order dated 14/1/2020. In

that view of the matter, though the judge who passed the earlier

order dated 14/1/2020 was available, the order passed by District

Judge - 1 in Review Application No.1 of 2020 which is impugned

herein is without any jurisdiction. So as to substantiate his contention,

he would invite attention of this court to the provisions of Section 114,

Order 47, Rules 1, 2 and 5 of the Civil Procedure Code. In support of

this contention, he relied on the judgment of Apex Court in the matter

of Malthesh Gudda Pooja vs. State of Karnataka and others reported in

(2011) 15 SCC 330.

10] His further contention is, once by Bombay Amendment,

provisions of Rule 102 of Order 21 of C.P.C. are deleted, objection

preferred by the Petitioner under Order 21 Rule 97 sub-rule (2) ought

to have been decided on its own merit by a detailed inquiry. It is also

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claimed by him that review has been sought on altogether different

grounds than the one canvassed earlier and that being so, reviewing

court has exceeded its jurisdiction. The learned Senior Counsel would

urge that court below has failed to consider very applicability of

Section 52 of the Transfer of Property Act. According to him, in

review jurisdiction, it is not open to re-appreciate the evidence and

that being so, court should have held that no case for review is made

out. Drawing support from the judgment of the Apex Court in the

matter of Kamlesh Verma vs. Mayawati and others reported in (2013)

8 SCC 320, his contentions are, review court ought not to have

entertained review thereby allowing the same. He has also placed

reliance on the latest judgment of the Apex Court in the matter of

Ram Sahu (Dead) Through LRs and Others reported in 2020 SCC

OnLine SC 896.

11] Further contentions of Mr. Anturkar are, in absence of rules

framed under Section 127 of the Civil Procedure Code governing the

proceedings for review before the Civil Court, the order impugned is

not sustainable. As such, submissions are, the order impugned is liable

to be set aside.

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12] While countering the aforesaid submissions, party in person

who is a decree holder and who has opposed the claim would urge

that he is litigating for his right since 1987 i.e. for almost more than

35 years. According to him, Petitioner is a stranger to the decree, who

has purchased the property during pendency of suit and that being so,

he cannot claim better rights than the rights of the judgment debtor.

The party in person would try to enlighten this Court on the previous

knowledge of the Petitioner in purchasing the property during

pendency of present proceedings before the court. According to him,

pursuant to the order of learned Principal District Judge, Review

Application was placed before the learned District Judge-1 and that

being so, order impugned is sustainable. As such, he sought dismissal

of the Petition.

13] At the outset, the first issue, in my opinion, which warrants

consideration is: whether order impugned could be termed as one

without jurisdiction, as the order in original, thereby remanding the

matter back to Executing Court was passed by District Judge-2,

whereas District Judge-1 has reviewed that order. While passing the

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order impugned, the learned Judge was sensitive to the fact that the

order of which review was sought before him was passed by District

Judge-2 manned by some different judicial officer. Thereafter,

Respondent/original decree holder made some grievance before the

Principal District Judge and Principal District Judge vide

administrative order dated 28/3/2020 was pleased to withdraw the

review proceedings from the file of District Judge-2, Niphad and

assigned the same to learned Court presided over by District Judge-1

in exercise of powers under Section 24 of the C.P.C. Said provision

with equal vigor is applicable to even execution proceeding. As such,

aforesaid circumstances prompted learned Principal District Judge to

assign the matter to learned District Judge-1 who has proceeded to

exercise jurisdiction under Section 114 read with Order 47 of the Civil

Procedure Code.

14] In the aforesaid backdrop, contention of the learned Senior

Counsel that review application should have been heard by District

Judge-2 who was very much available, cannot be accepted. Under

Section 24 of the Civil Procedure Code which is equally applicable to

the execution proceedings, Principal District Judge is empowered to

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transfer the proceedings from one judge to another judge, provided

cause to that effect is made out. The fact that transfer of proceedings

from District Judge-1 was never questioned before hearing of Review

Application, cannot permit the Petitioner to raise technical objection

that in the scheme of Order 47 Rules 1, 2 and 5 matter should have

been heard by District Judge-2 and not by District Judge-1. As far as

judgment in the matter of Malthesh Gudda Pooja cited supra which is

relied upon by the learned Senior Counsel for the Petitioner is

concerned, same will not be of any assistance in the backdrop of order

of transfer of review proceedings by the Principal District Judge. It

appears that the order passed under Section 24 of the Civil Procedure

Code transferring the matter from the file of District Judge-2 to

District Judge-1 can be termed as an exception to the provisions of

Order 47 Rule 5 to mean that even if same judge was available whose

order was sought to be reviewed, circumstances prevailed before the

Principal District Judge to transfer the review Application to District

Judge-1. As such, said contentions are liable to be rejected.

15] In the light of aforesaid observations and having regard to the

submissions made by the learned Senior Counsel for the Petitioner, it

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is apparent that only grievance made is, the judge who has passed

the order of which review is sought, though was available, matter was

placed before other judge. Both these judges have similar jurisdiction

which fact is not in dispute. In the aforesaid backdrop, claim of the

Petitioner that the learned District Judge-1 has committed an illegality

in entertaining the Revision Application is devoid of any merits. If the

contention of the Petitioner that District Judge-2 has jurisdiction,

District Judge-1 who is manning similar Court with similar powers, of-

course has jurisdiction to decide the claim put-forth. As such, no

illegality could be noticed on the aforesaid issue.

16] As far as next contention of the learned Senior Counsel that

reviewing court has re-appreciated the evidence and allowed Review

Application is concerned, it can be observed from the order impugned

that by express provisions court has every authority in law to review

the judgment, provided an error apparent on the face of record is

noticed. The order of which review was sought was based on

observation that Executing Court, while dealing with the objection of

the Petitioner pursuant to provisions of Order 21 Rule 97/98 has held

that an adjudication is required to be conducted, before removal of the

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obstruction by recording findings to that effect. Reviewing court

noted that the Apex Court in the matter of Silverline Forum Pvt. Ltd.

vs. Rajiv Trust and Another reported in (1998) 3 SCC 723 has

observed that that detail inquiry as contemplated while deciding the

suit is not required while dealing with the objection of the

obstructionist. Though vide Bombay Amendment, provisions of Rule

102 of Order 21 are deleted, it is required to be noted that under

Order 21 Rule 97, inquiry contemplated an inquiry which need not be

a detailed inquiry or collection of evidence. Paras 11, 12, 14 of the

aforesaid judgments speak thus:-

"11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint."

"12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for

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determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section."

"14. It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree

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and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination. If the Court deems it necessary."

17] This Court cannot be oblivious to the fact that the Petitioner

preferred Writ Petition No.8175 of 2018, which was decided on

1/10/2018. Respondents vide Review Petition (St) No.29552 of 2018

sought re-call of the order which was allowed by this Court on

1/11/2018. This Court has observed that the present Petitioner has

purchased the suit property from Sundari Ganpati Pillai by registered

Sale Deed dated 13/10/2006 which was admittedly executed in favour

of the Petitioner during the pendency of the litigation. It is then

observed that the Hon'ble Supreme Court in its judgment dated

14/3/2008 passed in Appeal (Civil) No.1998 of 2018 in the matter of

Usha Sinha Vs. Dina Ram & Ors has held that the Petitioner who is a

transferee cannot obstruct decree holder and benefits under Order 21

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Rule 98 are not available. As such, it was held that the Petitioner was

not entitled for benefit under Order 21 Rule 98 of the Civil Procedure

Code.

18] In spite of above, the Petitioner has pursued the proceedings

before the Executing Court with identical submissions.

Respondent/decree holder has also participated in the proceedings

and the Executing Court recorded detailed finding after elaborate

inquiry on the rights of the present Petitioner to obstruct decree,

particularly when he is a purchaser of property during pendency of the

proceedings.

19] As far as scheme of Order 21 Rule 97 is concerned, in the

judgment in the matter of Silverline Forum Pvt. Ltd., Apex Court has

already held that if the obstructor admits that he is a transferee

pendente lite it is not necessary to determine a question raised by him

that he was unaware of the litigation when he purchased the property.

The Supreme Court then proceeded to hold that the Executing Court

can decide whether resistor or the obstructor like Petitioner is a person

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bound by the decree and can refuse to vacate the property, based on

his rights to be looked into within the purview of Order 21 Rule 97

sub-rule (2). In the aforesaid backdrop of the observations of the Apex

Court, if we peruse the observations of the Executing Court, the

Executing Court in detail has considered the contentions of the

Petitioner, of creation of right in his favour by virtue of Sale Deed of

2006. As such, it can be noticed that inquiry as was contemplated

under Order 21 Rule 97 sub-rule (2) was duly taken recourse to and

looked into by the Executing Court so also re-appreciated by the

appellate Court in the order under challenge. The Executing Court not

only has determined the question of legal right of the Petitioner to

obstruct decree but has legally arrived at conclusion that the Petitioner

cannot be held to be entitled to obstruct decree under the provisions of

law.

20] In that view of the matter, since the lower appellate court i.e.

District Judge-1 whose order is impugned herein has noticed error

apparent on the face of record and as such proceeded to pass an

order reviewing the order of learned District Judge-2, thereby

dismissing the objection raised by the Petitioner. The Apex

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Court in the matter of Kamlesh Verma cited supra in para 17 to 19 has

laid down that it is not open for reviewing Court to re-appreciate the

evidence and reach to a different conclusion even if it is possible. As

far as case in hand is concerned, what is noticed is, parties have relied

on documentary evidence. The issue as to whether under Order 21

Rule 97/98, 101 a detail inquiry like that in a suit is required to be

conducted is answered. As such, it cannot be inferred that reviewing

court has exercised power of appellate court thereby re-appreciating

the evidence. In that view of the matter, summary principles laid

down in aforesaid judgment to be considered in the matter of review

are worth referring to, which read thus:

"20.1 When the review will be maintainable"

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram vs. Neki [(1921-22) 49 IA 144] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337]"

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21] In the case in hand reviewing court has noted that there is

mistake apparent on the face of record and as such, order in review

jurisdiction was passed. The Reviewing Court was conscious of the

fact that it has no power to re-appreciate the evidence and has

proceeded to deal with rival contentions.

22] The contention of the learned Senior Counsel for the Petitioner

that no lis pendens was registered and that being so, protection under

Section 52 of the Transfer of Property Act is not available to the

Respondents is also liable to be rejected, as it can be inferred from the

evidence brought on record hat the Petitioner was having knowledge

of pendency of the dispute. Not only that, this Court has already

observed that the Petitioner cannot be termed as purchaser without

notice as he has not taken appropriate caution before getting part of

the suit property transferred in his favour, as the proceedings were

pending in relation to the suit property before the competent

authority. Mr. Anturkar has relied on provisions of the Bombay Act

No. XIV of 1939 and Bombay Act No.LVII of 1959 so as to make out a

point based on the provisions of Section 52 of Transfer of Property Act

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in favour of the Petitioner. It is to be noted that this Court had an

occasion to consider the said provisions in the matter of Pramod

Moreshwar Tattu vs Sub-Divisional Officer, Baramati and others

reported in 2018 (6) Mh.L.J. 18. It is already observed by the

Executing Court that in 7 x 12 extract of the suit property there is

mention about pendency of the suit proceedings i.e. pendency of

Regular Civil Suit No. 62 of 1995. Once there is mention about

pendency of the suit, it cannot be inferred that the Petitioner is a

purchaser of the suit property without notice. In the aforesaid

backdrop, contentions raised by the learned Senior Counsel for the

Petitioner that in the absence of registration of lis pendens, benefit

that of the purchaser of the suit property without notice should be

extended, cannot be accepted and is accordingly liable to be rejected.

23] The status of the predecessor-in-title i.e. Mr. Jaju was that of

licensee at an agreed license fees. The said document of 29/6/1978

since is a registered document, based on same the Supreme Court

recorded a finding of presumption that transaction between

Respondents/decree holders and original judgment debtors was a

genuine one. The objection of the Petitioner to the execution of

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decree in question that he has perfected his title having succeeded to

the same through Sundari Pille who has purchased the property from

Ramakant Jaju. It appears that the said Sundari Pille i.e. predecessor-

in-title of the Petitioner preferred Writ Petition (St) No.96454 of 2020

before this Court wherein injunction in the objection proceedings was

rejected by the court below. This court has already dismissed the said

Writ Petition preferred by Sundari Pille. As such, Petitioner cannot

claim better title than Sundari Pille or from Jaju who is a judgment

debtor.

24] It can be inferred from the record that Petitioner has purchased

the suit property during pendency of proceedings before the court

below. The Petitioner has nowhere demonstrated that before

purchasing the property he or his vendor at any time had called

objections of the persons interested, thereby issuing public notice.

Apart from above, entry in revenue record about pendency of

proceedings, absence of title verification cannot give benefit to the

Petitioner as that of purchaser for value without notice. The Executing

Court and the lower appellate court was sensitive to the aforesaid

issue and noticed that the Respondent/decree holder is agitating his

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claim for last 35 years.

25] In the aforesaid backdrop, in my opinion, no case for

interference is made out, as both the the courts below have dealt in

detail the contentions raised by the Petitioner. The judgment under

review, so also the one passed below Exhibit-66 which is questioned in

the present Petition in categorical terms deal with all the contentions

raised. The Petitioner who is a third party being transferee during

penency of civil suit cannot claim better rights than the

defendants/judgment debtors.

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

Petition fails and same stands dismissed.

( NITIN W. SAMBRE, J. )