Bombay High Court
Sayyad Khwaja Ghyasuddin vs Sarangdhar S/O Sheshrao Tayade on 22 July, 2022
Bench: Manish Pitale
1/6 02-WP 3886.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3886 OF 2022
Mr. Sayyed Khwaja Ghyasuddin s/o Sirajuddin
vs.
Sarangdhar s/o Sheshrao Tayade and another
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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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Mr. A. M. Balpande, Advocate for petitioner.
Mr. R. M. Sharma, Advocate for respondent No.1.
CORAM : MANISH PITALE J.
DATE : 22/07/2022
By this petition, petitioner is challenging
concurrent orders passed by the two Courts below,
whereby an objection raised by the petitioner to
execution of a decree passed in favour of respondent
No.1, has been rejected.
2. Briefly stated the backdrop in which this
petition has arisen is that the respondent No.1 had
filed a suit in the year 1998 against respondent No.2
for possession, on the strength of a registered Sale
Deed dated 11/11/1985. The case of the respondent
No.1 was that since he was residing at a place away
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from the actual location of the property, he stood
dispossessed by the respondent No.2.
3. Prior thereto the respondent No.2 had
filed a suit for simplicitor injunction claiming that he
ought not to be dispossessed in respect of the said
property. The suit was dismissed in the first instance
and an appeal was filed in the year 1994. There is no
dispute about the fact that the suit for possession
filed by the respondent No.1 was decreed in his
favour and it had attained finality. It is also an
admitted position that the appeal filed by respondent
No.2 against dismissal of his suit for injunction was
allowed in the year 2017 to the extent that he could
not be dispossessed without following due process of
law. It is in this backdrop that the respondent No.1
sought to execute the decree, which was granted in
his favour on the basis of the aforesaid registered Sale
Deed existing in his favour.
4. It is in the aforesaid execution proceeding
that the petitioner for the first time raised an
objection that the decree could not be executed as
against him, because he was in possession of the suit
property and that he was put in possession as far
back as on 21/06/1990. The objection was opposed
by the respondent No.1 and the Executing Court took
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up the matter for consideration after evidence on
behalf of the parties was recorded.
5. After taking into consideration the
evidence on record, the Executing Court found that
the petitioner i.e. the objector was claiming only on
the basis of an agreement to sale and he had no
semblance of any right or interest in the suit property,
as against respondent No.1, who was having
registered Sale Deed in his name and a decree of the
competent Court directing possession to be handed
over to him. On this basis, the objection was rejected.
6. Aggrieved by the same, the petitioner filed
appeal before the District Court, which was dismissed
leading to filing of the present writ petition.
7. The learned counsel for the petitioner
submitted that he was put in possession as far back as
on 21/06/1990 and the decree passed in favour of
respondent No.1 could not be executed for the reason
that he was in possession of the suit property on the
basis of an agreement executed by respondent No.2
i.e. judgment debtor in his favour and that the
objection raised on behalf of the petitioner was not
considered in the correct perspective by the Courts
below.
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8. On the other hand, the learned counsel
appearing for the respondent No.1 vehemently
submit that the said respondent had been struggling
for possession of the suit property since the year
1998, despite a registered Sale Deed executed in his
favour, as far back as in the year 1985. It was
submitted that the petitioner had been put up by the
original judgment debtor i.e. respondent No.2, only
to frustrate decree.
9. This Court has heard learned counsel for
the rival parties in the backdrop of the material
placed on record. A perusal of the concurrent orders
passed by two Courts below shows that the sequence
of events has been correctly appreciated. It is found,
as a matter of fact, that the respondent No.1 has a
registered Sale Deed in his favour executed as far
back as in the year 1985. The decree for possession
passed in his favour has attained finality. The
judgment debtor i.e. respondent No.2, who only had
a decree in his favour of not being dispossessed
without due process of law, while pursuing the
aforesaid litigation never claimed that he had handed
over possession to the petitioner as far back as on
21/06/1990 and pursued his appeal on the assertion
that he was in possession and did not deserve to be
dispossessed without due process of law. This aspect
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has been correctly appreciated by the Courts below
while holding against the petitioner.
10. It is too late in the day for the petitioner
to stand up and say that he has been in possession of
the suit property since 21/06/1990 and that
therefore, the decree passed in favour of respondent
No.1 cannot be executed.
11. This Court is of the opinion that the
nature of objection raised on behalf of the petitioner
is another illustration of the myriad ways in which
objectors in the adversarial system prevalent in our
country come up with ideas to tire the decree holder
to such an extent that either he comes around to
settle the dispute or dies in the process, without
enjoying the fruits of the decree. The petitioner
appears to have been put up by the respondent No.2,
only with a view to frustrate the decree, which
cannot be allowed by this Court.
12. In view of the above, the writ petition is
dismissed.
13. A request is made by the learned counsel
appearing for the petitioner for stay of four weeks to
the order passed by this Court. In the light of the
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observations made herein above, this Court is not
inclined to consider the said prayer. Accordingly, the
prayer is rejected.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:26.07.2022
15:34
KOLHE
