Nathu S/O Baliram Fulzele vs Tarachand S/O Baliram Fulzele And ...
2021 Latest Caselaw 13232 Bom

sa.st.3510.21                                                                                        1/4


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                   Civil Application [CAS] St. No.11041 of 2021
                                         in
                        Second Appeal St. No.3510 of 2021
                                         Nathu Baliram Fulzele
                                                   vs.
                                   Tarachand Baliram Fulzele & others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                                Court's or Judge's Orders
or directions and Registrar's orders.
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                              Shri S.V. Bhuyar, Advocate (Appointed) for the Appellant.

                                               CORAM     :   S.M. MODAK, J.

DATE : 16th SEPTEMBER, 2021.

The appellant has not filed certified copy of the memo of appeal and typed copy of Marathi documents. The photocopies of the certified copies of memo of appeal and the documents are filed. Hence, filing of certified copies is dispensed with.

The application is disposed of.

Pursis St. No.1/2021:

The impugned judgment is passed on 08/06/2020. This appeal is filed on 25/02/2021. At that time, the order passed by the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No.3/2020 on 08/03/2021 was in force. Hence, the objection of limitation is overruled.

Second Appeal St. No.3510/2021:

Heard the learned Advocate for the appellant.

The present appellant is the judgment debtor No.1-defendant No.1. The execution proceedings were filed by the plaintiff requesting to partition the house

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property and the agricultural land by appointing Court Commissioner and by issuing precept to the Collector. The executing Court has appointed the Court Commissioner and the report was submitted on 25/01/2018. The learned Court Commissioner has divided the suit house into three parts. One part each is allotted to the plaintiff, defendant No.1 and defendant No.3.

The executing Court has accepted the said report and put a seal of approval on the allocation suggested by the learned Court Commissioner. An order to that effect was passed on 09/07/2018. The plaintiff was allotted a portion of southern side, defendant No.3 was allotted a portion of northern side and defendant No.1 was allotted a middle portion. The plaintiff being aggrieved by the said demarcation filed R.C.A. No.422/2018.

The first appellate Court has modified the allocation as per the judgment passed on 08/06/2020. Initially defendant No.1 was given the middle portion, whereas the first appellate Court had given the share falling on the northern side to defendant No.1 and middle portion was allotted to defendant No.3.

The present appellant-defendant No.1 is aggrieved by the abovesaid modification in the allocation. According to him, the first appellate Court has not considered the issue of causing hardship to defendant No.1. The grievance is that, the plaintiff has not raised objection to the report of the Court Commissioner and the allocation suggested by him. My attention is brought to the observation made by the executing Court in the order dated 09/07/2018 and

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more specifically to paragraph 2. Though, the say of both the sides was called by the executing Court, they have not filed reply to the report of the learned Court Commissioner. The grievance is that, the first appellate Court has accepted the grievance of the plaintiff, even though that grievance was not agitated before the executing Court.

In view of the above submission, issue notice before admission to the respondents on the following substantial question of law, making it returnable after six seeks.

i. Whether the first appellate Court was right in modifying the allocation suggested by the learned Court Commissioner and approved by the executing Court on the say of the plaintiff, particularly when he has not taken objection to the said demarcation before the executing Court?

The appellant to remove office objections within six weeks.

Civil Application [CAS] St. No.10452/2021:

The plaintiff has filed the execution and defendant No.1 has received the notice. The plaintiff has asked for issuing direction to handover the possession as per the modification order by the first appellate Court. The appellant apprehends that if the possession is handed over, the purpose of filing this appeal will be frustrated. The appellant claims to be in possession of the middle portion and as per modification, this middle portion is allotted to defendant No.3.

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In view of that, the execution so far as issuing direction of giving possession of the suit property is stayed until next date.

JUDGE *sandesh