Bombay High Court
Kantilal Jadhavji Rathod And ... vs Smt. Veena Wd/O Wasudeobhai ... on 17 September, 2021
Bench: Avinash G. Gharote
(1) 13.wp.3304.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3304 OF 2020
Kantilal Jadhavji Rathod and others
Vs.
Smt. Veena Wd/o Wasdeobhai Rathod
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. N. L. Jaiswal, Advocate for petitioners.
Mr. Thakkar, Advocate for respondent.
CORAM : AVINASH G. GHAROTE, J.
DATE : 17/09/2021
Heard Mr. Jaiswal, learned Counsel for the
petitioners. The petition challenges the order below Exh.23
dated 23.10.2020 passed in Special Darkhast No.131 of 2019 by
the Court below directing the Nazar to pay 10 % of share of the
decree holder to the tune of Rs.20,61,786.61/- deposited in the
Court, if not withdrawn by her earlier on furnishing two solvent
sureties of the like amount to secure the said payment and an
affidavit that there was no stay by any Court in the matter.
2. Mr. Jaiswal, learned Counsel for the petitioners
submits that the Special Darkhast No.131 of 2019 was filed in
pursuance to a decree dated 20.11.2006 passed in Spl.C.S.
No.354 of 1996 by the 2nd Joint Civil Judge Senior Division,
Nagpur, however, in Appeal No. RCA No.555 of 2015, dated
27.2.2020, the judgment and decree dated 20.11.2006 passed in
(2) 13.wp.3304.2020
Spl. C. S. No.354 of 1996, was quashed and set aside and the suit
itself was dismissed. However, the plaintiff was held entitled to
withdraw the amount of Rs.9,45,611.43/- which was lying in her
credit account, if not withdrawn earlier, along with interest
accrued thereupon.
3. Mr. Jaiswal, learned Counsel for the petitioners
submits that consequent to the appellate order, the decree as
passed by the Trial Court no longer exists and therefore, there
was no question of levying any execution and the Special
Dharkhast No.131 of 2019, though filed earlier could not have
continued apart from which the learned lower Court could not
have passed the impugned order at all, therein.
4. Mr. Thakkar, learned Counsel for the respondent
submits that the judgment of the Trial Court granted certain
benefits to the respondent as well as the petitioners, and
therefore, the respondent was entitled to levy the execution in
which the learned Trial Court has passed the impugned order.
5. No doubt, till the time the decree as passed in
Spl.C.S. No. 354 of 1996 was alive, an execution for its
enforcement was maintainable, however, once a decree has been
set aside by the Appellate Court in toto and the suit itself has
been dismissed, there is no question whatsoever of the execution
(3) 13.wp.3304.2020
proceedings to continue in view of which, Spl Darkhst No.131 of
2019 could not have been prosecuted or continued by the
respondent. So also, the learned executing Court, could not have
passed the impugned order, in spite of the Judgment of the
Appellate Court dismissing the suit having been brought to its
notice which is indicated in para 5 of the impugned order.
6. In that view of the matter, the impugned order
cannot be sustained and the same is quashed and set aside. Exh.
23 is accordingly dismissed and it is held that in view of the
Judgment in Appeal RCA 555 of 2015 dated 27.2.2020, the
execution proceeding cannot continue.
JUDGE
Sarkate
