Bombay High Court
Smt. Yamunabai Kisanrao Shinde ... vs Kum Swati Khanderao Shinde Alias ... on 16 November, 2021
Bench: Bharati Dangre
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2021.11.18
19:29:14 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7438 OF 2021
Smt. Yamunabai Kisanrao Shinde
(Since Deceased) Through LRs. .. Petitioners
Vs.
Kum. Swati Khanderao Shinde
@ Ishani Surendra Deshmukh
(Since Deceased) Through LRs.
& Ors. .. Respondents
...
Mr. S.C. Wakankar for the petitioners.
Mr. Kiran C. Wagaj with Mr. Purshottam for respondent Nos.1A
and 1B.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 16TH NOVEMBER, 2021.
P.C:-
1. This is a classic case, where once again the decree-holder
has been kept away from the fruits of the decree granted in his
favour in a civil suit filed in the year 1971. The suit filed by the
plaintiffs sought reliefs of declaration and specific performance.
It was specifically prayed by the plaintiffs that the defendants
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have no right to keep the business because there is breach of
conditions of the registered agreement and re-conveyance was
sought to be effected in respect of the business in the name of the
plaintiffs, which was run under the name and style of "Ganu
Shinde Cold Drink House". The account of the business was
also sought by the plaintiffs along with net profit. Possession of
the suit property was also claimed by prayer clause (3) in the
suit.
2. The aforesaid suit is decreed on 04/05/2000 and a
declaration is given that the defendants have breached the
conditions of the agreement and the plaintiffs were held entitled
to get the re-conveyance of the Deed from the defendants in
respect of the business "Ganu Shinde Cold Drink House" on or
before 20/06/2000. The preliminary decree in respect of the
settlement of account was directed to be drawn and separate
enquiry for fixing the mesne profits was also directed to be
initiated.
3. More than two decades with the decree in hand, the
plaintiffs are still wondering as to why the fruits of the decree
have been denied to them.
4. Recently, the Hon'ble Apex Court in Rahul S. Shah v.
Jinendra Kumar Gandhi & Ors. reported in (2021) 6 SCC 418,
had taken note of the delay in execution of the decrees, which is
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a normal phenomena and was constrained to issue directives so
that the suits and execution proceedings shall be concluded in a
time bound manner and a specific direction, which warrants my
attention and which should also be brought to the attention of the
executing court is, paragraph No.42.12, where the Apex Court
has directed that the executing court must dispose of the
execution proceedings within six months from the date of filing,
which may be extended only by recording reasons in writing for
such delay.
5. The regular Darkhast bearing No.65 of 2004 is still
awaiting its culmination. My attention is invited to multifarious
attempts at the instance of the judgment debtor to delay the
execution of the decree and this is also set out by the learned
judge, when he has rejected the applications from time to time.
However, I need not deal with the entire gamut of the said
Darkhast, which include various applications filed by the decree-
holder as well as the judgment debtor and even the obstructionist
i.e. the sisters of the judgment debtor.
6. Suffice it to mention that the petition is filed being
aggrieved by an order passed by the executing court below Ex-
214, Ex-255 and Ex-256, under which the learned Judge has not
entertained the judgment debtor's claim for advancing oral
arguments in support of the applications which have been
contested in the said suit. Pertinent to note that by passing an
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order below Ex-232 on account of pandemic, learned Judge
directed the parties to file written arguments before proceeding
to decide Ex-232, Ex-216 and Ex-214. Accordingly, written
arguments were filed and the applications were decided by a
common order on 22/09/2021. Under the said order, the
applications filed below Ex-216 by the judgment debtor and his
LRs below Ex-232 came to be rejected. The application for
issuance of possession warrant filed below Ex-214 by the
decree-holder was allowed and possession warrant was directed
to be issued after 31/10/2021.
It is informed by learned counsel for the other side that the
order passed below Ex-216 and Ex-232 are already carried in
appeal by the judgment debtor/obstructionist.
7. Another milestone was attained when on 22/09/2021, the
third party as well as the judgment debtor moved an application
vide Ex-255, wherein it was prayed that they should be allowed
to advance oral arguments before deciding the applications
below Ex-216, Ex-232 and Ex-214. The said application was
strongly opposed by the decree-holder as it was filed by way of
delay tactics and the learned Judge, after recording that the
proceedings were adjourned on 13 dates by the judgment debtor
to bring their written arguments on record, further records in the
order that the application is moved by the judgment debtor at a
tme when the matter is fixed for order. Left with no option, to
avoid the consumption of time by decree holder, which was
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merely an attempt to delay the proceedings, learned Judge on
22/09/2021 rejected the application.
8. The petitioner, is today aggrieved by the orders passed in
Ex-214, Ex-255 and Ex-256.
The decree-holder has been patiently waiting his share of
relief for more than two decades. On a suggestion being made
by the court that if they are allowed to advance their oral
arguments on the three applications below Ex-216, Ex-232 and
Ex-214, learned counsel for the respondents fairly concedes to
the fact that if this court directs that the said applications will be
decided by the executing court within a time frame, they can
postpone the availing of the fruits, since the possession warrant
is directed to be issued after 31/10/2021 and inspite of the said
order, till the date they have nothing in their hands.
Considering this fair statement from the decree holder, I
deem it expedient to direct the executing court dealing with
Darkhast No.65 of 2004 to afford an opportunity of hearing as
claimed by the judgment debtor as well as the obstructionist,
who have moved an application vide Ex-216. However, I cannot
ask the decree holder to wait for a longer time and though I am
conscious of the fact that the learned Judge dealing with the
Darkhast may be already pre-occupied, in the wake of the latest
decision of the Apex Court in Rahul Shah (supra), I deem it
expedient to direct the executing court to take up the said
applications on 22/11/2021 and by conducting the hearing on
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day-to-day basis, by affording opportunity to both the parties to
submit oral arguments, conclude the hearing on said exhibits on
or before 26/11/2021. It is made clear that none of the parties
will seek any adjournment on these dates and the learned Judge
shall proceed with the applications without seeking any written
arguments by either side.
Upon such a direction being issued, learned counsel for the
petitioner states that the appeals filed by him challenging the
order passed in applications below Ex-232 and 216 shall be
withdrawn.
9. Needless to state that since the executing court is directed
to afford an opportunity of hearing on applications below Ex-232
and Ex-216, possession warrant shall not be given effect to till
the time, the learned Judge decides the applications, as directed
aforesaid i.e. on or before 26/11/2021.
10. The writ petition is disposed of in the aforestated terms.
[SMT. BHARATI DANGRE, J.]
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