Bombay High Court
Aurangabad Textile Mills Thr. Its ... vs The Vijayalaxmi Co-Op Housing ... on 1 September, 2021
Bench: Mangesh S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 846 OF 2012
Aurangabad Textile Mills.,
A Unit of National Textile Corporation
(South Maharashtra) (Now - Western Region),
Kotwalpura, Aurangabad, PETITIONER
through its General Manager (Ori. Decree-Holder)
VERSUS
1. The Vijayalaxmi Co-operative Housing
Society Ltd., Shukleshwar Mandir Parisar,
Fazalpura, Collector Office, Aurangabad,
through its Secretary
2. Babanbai Parasram Jadhav,
Age : 72 years, Occu. Household,
R/o H. No.4-16-123, CTS No.2751,
Kotwalpura, Mill Corner, Aurangabad
3. Anand s/o Parasram Jadhav,
Age : 53 years, Occu. Not known,
R/o as above
4. Jayant s/o Parasram Jadhav,
Age : 50 years, Occu. Not known,
R/o as above
5. Bhaarat s/o Parasram Jadhav,
Age : 48 years, Occu. Not known,
R/o as above
6. Anand s/o Parasram Jadhav,
Age : 53 years, Occu. Not known,
R/o as above
7. Ganpat s/o Parasram Jadhav, RESPONDENTS
Age : 41 years, Occu. Not known, (Respdt. No.1 is Objection
R/o As above Petitioner, Respdt.No2.2 to
7 are Judgment-Debtors)
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Mr. M.N. Navandar, Advocate for the petitioner
Mr. P.R. Katneshwarkar, Advocate for respondent No.1
Mr. V.P. Narwade for respondent Nos.2 to 5
----
CORAM : MANGESH S. PATIL, J.
DATE OF JUDGMENT RESERVED : 30.08.2021
DATE OF JUDGMENT PRONOUNCED : 01.09.2021
JUDGMENT :
Heard.
2. Rule. The Rule is made returnable forthwith. Mr. P.R.
Katneshwarkar, learned Advocate waives service for respondent No.1 and Mr.
V.P. Narwade, learned Advocate waives service for respondent Nos.2 to 5.
With the consent of the learned Advocates for the parties, the matter is heard
finally at the stage of admission.
3. By invoking the powers under Article 227 of the Constitution of
India, the petitioner, which is a decree-holder, is impugning the order dated
24.12.2010, passed by the executing Court on the application (Exh-97) of
respondent No.1, thereby allowing the application and directing the objection
petition (Exh-85) filed by respondent No.1 to be adjudicated upon on merits
in accordance with the procedure contemplated under Order-XXI Rule-97
(sic) of the Code of Civil Procedure ("CPC", for short).
4. Mr. M.N. Navandar, learned Advocate for the petitioner submits
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that respondent No.1 is a stranger to the litigation whereas by virtue of the
wording of Order-XXI Rule 101 of the CPC, it is only the parties to the suit
who can file any objection proceeding and the executing Court is not entitled
to decide it. The learned Advocate, referring to the facts, also endeavoured
to demonstrate as to how the decree has reached finality upto the Supreme
Court and the petitioner is entitled to get it executed. According to him,
respondent No.1, without having any right, title or interest, is creating
obstruction. The learned Advocate would also submit that in fact, respondent
No.1 has also filed Special Civil Suit No.141 of 2010, seeking declaration of
his title to the very same property but instead of prosecuting it, he has been
unnecessarily raising objection to the execution of the decree in favour of the
petitioner. No such parallel proceedings can be allowed to be maintained. He
would, therefore, submit that ignoring all these circumstances, the learned
Judge, by the impugned order, has allowed the objection petition to be heard
and decided.
5. Mr. P.R. Katneshwarkar, learned Advocate for respondent No.1
submits that in fact, the order challenged in the petition only directs that the
objection petition filed by respondent No. 1 is to be tried and decided in
accordance with the provisions of Order-XXI Rules 91 to 103 of the CPC. The
matter has become infructuous. He would submit that pursuant to the
impugned order, which was passed way back in the year 2010, the objection
petition has been taken up for decision. Respondent No.1 has already
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examined witnesses and now the matter is awaiting the evidence to be led by
the petitioner, if any. He would, therefore, submit that the purpose of filing
the petition has already been put at naught since the executing Court has
already proceeded to hear and decide the objection petition of respondent
No.1.
6. I have carefully perused the impugned order and the record. At
the outset, it is necessary to note that the petitioner has nowhere taken any
exception to the filing of the objection petition by respondent No.1, much less
regarding its maintainability. For that matter, even such an issue was never
agitated before the executing Court even while deciding the application
(Exh-97), on which the impugned order has been passed. Resultantly, the
objection petition (Exh-85) filed by respondent No.1 is still alive. Not only
this, but admittedly, the executing Court has already taken it up for decision
in accordance with the procedure prescribed under Order-XXI Rules 91 to
103 of the CPC. In a way, the whole purpose of filing the application
(Exh-97) has been served to a great extent inasmuch as the executing Court
has already started recording evidence and the evidence of respondent No.1
is already closed.
7. Besides, since the objection petition is still pending without there
being any objection regarding its maintainability, no fault can be found with
the learned Judge of the executing Court in going ahead and deciding its fate
on merits.
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8. The respondent No.1 has styled the objection petition as one
under Order-XXI Rule 97 of the CPC and the error is apparent since that
provision enables a decree-holder or a purchaser of a property sold in
execution, to resist the obstruction in obtaining possession.
9. A careful perusal of the objection petition (Exh-85) reveals that
respondent No.1 is claiming to have derived title to the property on the basis
of some sale agreement dated 13.11.1965 and also claims to be in possession
of the property pursuant to such deed. The merits of the claim apart, by
virtue of provision of Order-XXI Rule 99 of the CPC, if it is apprehending
dispossession on the basis of the decree under execution, it is entitled to
obstruct its execution by resorting to Order-XXI Rule 99.
10. Mr. Navandar, learned Advocate for the petitioner submits that in
view of the wording of Order-XXI Rule 101 of the CPC, it is only the dispute
between the parties to the suit, which can be determined and the proceedings
under Rule97 and Rule 99, are not legally tenable. However, when Rule 99
specifically enables a stranger apprehending dispossession pursuant to a
decree, which is put to execution, to raise objection, any reference to Rule
101 itself is incorrect. Both these Rules operate in different sphears. Rule 99
only enables a stranger to intervene in an execution proceeding whereas Rule
101, which is mostly in tune with the provisions of Section 47 of the CPC,
declares that all the questions between the parties to the suit or their
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representatives `relevant for the decision of the applications under Rule 97
and Rule 99', shall be determined by the executing Court and not by way of
separate suit. Consequently, the submission of the learned Advocate for the
petitioner needs to be simply discarded.
11. Considering all above state-of-affairs, the Writ Petition has no
merits and is liable to be dismissed.
12. The Writ Petition is dismissed. The Rule is discharged.
13. It is made clear that the executing Court shall not feel influenced
by the observations made in this judgment.
[MANGESH S. PATIL]
JUDGE
npj/WP846-212
