Azijullah Abdullah Choudhary ... vs Kedarnath Mahadev Tiwari And Anr
2022 Latest Caselaw 10469 Bom

                                                                             1 WP-12209-2022.doc

BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed by
  BHARAT
  DASHARATH
  PANDIT
                                           CIVIL APPELLATE JURISDICTION
  Date: 2022.10.13
  19:10:46 +0530
                                           WRIT PETITION NO.12209 OF 2022

                        1] Azijullah Abdullah Choudhary
                        alias Azizullah Abdulrehman Chaudhari
                        (Since deceased through legal heirs)
                        1a. Safiullah Azizullah Coudhary and Ors.     ....Petitioners.
                                          V/s
                        Kedarnath Mahadev Tiwari and Anr.             ..... Respondents.
                        ----
                        Mr. Dhananjay D. Rananaware for the Petitioners.
                        Mr. Bansraj Singh i/b R.B. Singh & Associates for the Respondents.
                        ----
                                          CORAM: NITIN W. SAMBRE, J.

                                             DATE:    OCTOBER 11, 2022

                        P.C.:-

                        1]       Heard.



                        2]       Writ Petition is against the order of the Small Causes Court,

                        Bandra, Mumbai        dated   19/09/2022 passed on the Applications

Exhibits-16 and 18 in Obstructionist Notice No.11 of 2017 in

Execution Application No.68 of 2017. Petitioners have also

questioned the order of the said Court dated 19/09/2022 passed

below Exhibits 21, 23 and 26 in Execution Application Nos. 68 of

2017.

1 WP-12209-2022.doc

3] Application below Exhibit-16 is by the Petitioners in

Obstructionist Notice No.11 of 2017 for restoration of possession,

Application below Exhibit-18 is by the stranger for restraining the

decree holder from removing belongings and creating third party

interest in the suit property, Application below Exhibit-21 is by

Defendant No.2, one of the Obstructionists seeking restoration of

possession, Application below Exhibit-23 is by judgment-debtor,

thereby seeking injunction against the decree holder from creating

third party interest and Application below Exhibit-26 is by decree

holder for directions to the judgment-debtor No.2 to remove

belongings.

4] Respondent No.1 filed RAE & R Suit No.268/701 of 1995 on the

grounds of arrears of rent, subletting which was decreed on

17/2/2003. It is claimed that said decree was ex parte. Misc. Appeal

No.6 of 2011 was preferred by Defendant No.2 which was dismissed

on 2/11/2012. Defendant No.2 thereafter preferred Revision before

this Court being Civil Revision Application No.1115 of 2012 which

1 WP-12209-2022.doc

was dismissed by a speaking order dated 25/2/2013. Subsequent

thereto Review Application No.3 of 2013 was taken out in Appeal

No.6 of 2011 at the behest of Defendant No.2. which was rejected on

6/10/2015 and the said order was confirmed by this Court in Civil

Revision Application No.242 of 2016.

4] As a consequence of above decree, Respondent/decree holder

got possession of the suit property in execution proceedings.

Petitioner Nos. 1 and 2 are real brothers. It is claimed that they have

preferred Obstructionist Proceedings bearing Nos. 10 and 11 of 2017

pursuant to the provisions of Order 21 Rules 97 to 103 which are still

pending adjudication. Petitioner No.1 is claimed to have title over the

suit property. It is claimed that Petitioner No.1 is intentionally not

impleaded as party to the suit proceedings so as to have decree

against the person who has not title, so that decree can be obtained

and executed expeditiously.

5] Based on the aforesaid title, Petitioners have preferred aforesaid

obstructionist proceedings. As far as orders passed below Exhibit-16

1 WP-12209-2022.doc

and Exhibit-21 are concerned, fact remains that since the orders are

passed in exercise of powers under Order 21 Rule 99, Petitioners have

remedy of appeal and as such claim to that effect stands rejected with

liberty to the Petitioners to take out appropriate proceedings.

6] As far as challenge to the order below Exhibit-18, thereby

restraining the present Respondents/-decree holder from removing

belongings of the Petitioners so also order below Exhibits-23 and 26

are concerned, facts remains that at the behest of the decree holder,

directions are issued to Petitioner No.2/judgment debtor to remove

his belongings from the suit property.

7] The said order is passed pursuant to the fact that the Petitioners

have lost possession in execution of the decree, though it is claimed by

the Counsel for the Petitioners that in view of the judgment of the

Apex Court in the matter of Brahmdeo Choudhary vs. Rishikesh

Prasad Jaiswal and Another reported in 1997 DGLS (SC) 102,

obstructionist cannot be put to hardship of removal of his belongings

and then pursue obstructionist proceedings. Fact remains that in the

1 WP-12209-2022.doc

case in hand brother of Petitioner No.1 obstructionist is one of the

judgment-debtors. The judgment-debtor has chosen not to appear

before the Court and has suffered decree. Both the judgment-debtor

and obstructionist who are agitating their claims under Obstructionist

Notice No.10 and 11 of 2017 have jointly came before this Court,

seeking protection of their belongings which are lying in the suit

premises.

8] As such, if we appreciate the aforesaid conduct of the

Petitioners, relief of protection claimed by them cannot be granted for

two reasons viz. (a) Petitioners' Appeal questioning the order of

refusal to restore the possession is yet to be considered and

(b) Obstructionist Notice Nos. 10 and 11 of 2017 at the behest of the

Petitioners are pending consideration before the Executing Court.

Apart from above, claim put-forth by Petitioner No.1 that he is a

stranger to the decree, cannot be accepted, particularly when

Petitioners are jointly prosecuting the present proceedings before this

Court. As such, law laid down by the Apex Court in the case of

Brahmdeo Choudhary (supra) will be of hardly any assistance in the

1 WP-12209-2022.doc

aforesaid backdrop.

9] That being so, there is no error of jurisdiction noticed in the

orders impugned. Writ Petition as such fails and same stands

dismissed.

( NITIN W. SAMBRE, J. )