Bombay High Court
Chandrakalabai W/O Dattraoji ... vs Bhaurao Appaji Odakhe And Others on 31 March, 2022
Bench: Manish Pitale
4.wp.3864.21 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3864 of 2021
Chandrakalabai w/o Dattraoji Patangrao (Chandrakalabai d/o Reshmaji Gaikwad)
vs.
Bhaurao Appaji Bodakhe & others
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. P.D. Sharma, Advocate for the Petitioner.
Mr. J.B. Kasat, Advocate for Respondent No.1.
CORAM : MANISH PITALE, J.
DATE : 31st MARCH, 2022.
By this writ petition, the petitioner has
challenged order dated 05/12/2019, passed by the Court of
7th Joint Civil Judge Junior Division, Pusad (hereinafter
referred to as a 'trial Court'), whereby a review application
filed by the original-plaintiff, i.e. respondent No.1 herein,
was allowed and earlier order allowing an application under
Order I Rule 10 of the Code of Civil Procedure (CPC) in
favour of the petitioner, was set aside. The petitioner has
also challenged judgment and decree dated 27/01/2020
passed by the trial Court in R.C.S. No.89/2007.
02] In the present case, a suit for partition and
separate possession was filed by respondent No.1, bearing
R.C.S. No.89/2007. During pendency of the suit, the
petitioner filed an application under Order I Rule 10 of the
CPC. This application in the first instance was allowed by an
order dated 07/02/2015. Subsequently, a review application
was filed by the respondent No.1, claiming that forged and
fabricated documents were placed before the Court on
behalf of the petitioner when the application under Order I
4.wp.3864.21 2/3
Rule 10 of the CPC was allowed in her favour.
03] The trial Court took into consideration the
material on record and found that the documents, upon
which the petitioner had placed reliance, could not be
sustained. It was found that a criminal proceeding in the
form of FIR No.143 was registered on 22/08/2015 against
the petitioner, Headmaster of the concerned school and
other persons for creating false record. After taking into
consideration such material, the trial Court passed the
impugned order on 05/12/2019, allowing the review
application and setting aside the earlier order dated
07/02/2015, whereby the application of the petitioner
under Order I Rule 10 of the CPC was allowed.
04] This order was not immediately challenged by
the petitioner and with passage of time, on 27/01/2020, the
suit came to be decreed. The respondent No.1 claims that as
on today, certain properties have already come in his
possession in terms of the decree.
05] Mr. Sharma, learned Counsel appearing for the
petitioner submitted that by the present petition, the
petitioner was entitled to challenge the order dated
05/12/2019, as well as the judgment and decree passed by
the trial Court in the aforesaid suit.
06] Mr. Kasat, learned Counsel appearing for
respondent No.1 submitted that the judgment and decree
passed by the trial Court could not be directly challenged by
filing writ petition. Even, as regards the order dated
05/12/2019, allowing the review application of respondent
4.wp.3864.21 3/3
No.1, Mr. Kasat submits that the said order was based on
material brought on record before the trial Court and that
there was no reason to interfere with the same.
07] In the first place, this Court is surprised that the
petitioner has directly challenged the judgment and decree
of the trial Court in the present writ petition. Such a remedy
is unknown to law. The petitioner chose not to challenge the
order dated 05/12/2019, within a reasonable period of time
and in the meanwhile on 27/01/2020, the trial Court passed
decree in the suit.
08] In this situation, this Court is not inclined to
entertain the present writ petition for the nature of prayers
made on behalf of the petitioner. The judgment and decree
dated 27/01/2020 passed in R.C.S. No.89/2007, can be
challenged only by way of remedy known to law and not by
filing the present writ petition. The petitioner would also
have the opportunity to raise her grievance in execution
proceedings initiated in pursuance of the decree passed by
the trial Court. Even otherwise, the impugned order dated
05/12/2019, could be made subject matter of challenge or a
grievance in that regard can be raised, if at all the petitioner
chooses to challenge the judgment and decree dated
27/01/2020, in terms of the procedure known to law.
09] In view of the above, the writ petition is
dismissed with the observations made hereinabove.
Needless to say, the interim order granted by this Court on
04/10/2021 stands vacated.
Signed by:SANDESH DAULATRAO
WAGHMARE
Private Secretary to the Hon'ble Judge
Signing Date:01.04.2022 13:10
JUDGE
*sandesh
