Vanita D/O Vasant Potfode @ Mrs. ... vs Shreeram S/O Vasant Potfode And ...
2022 Latest Caselaw 10824 Bom

                                                       1                            31wp6470.22.odt




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

                            WRIT PETITION NO. 6470 OF 2022
        (Vanita Vasant Potfode Vs. Shreeram Vasant Potfode and ors)
Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. A.N.Vastani Advocate for the Petitioner



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 17th OCTOBER, 2022.

1] Heard Mr. Vastani, learned counsel for the petitioner.

2] The petition challenges the order dated 16.7.2022 passed by the executing Court, whereby the application for appointment of Commissioner has been rejected and so also the order dated 4.10.2022 below Exh. 71, 74 and 75 whereby the warrant of possession has been issued by granting special bailiff and police protection.

3] It is not in dispute that by the judgment and decree passed in RCS No. 61/2010, dated 22.1.2014 (pg.30), the original defendants who are the respondent Nos. 3 and 4 before this Court were directed to deliver the possession to the plaintiffs within two months from the date of the decree. Since the same was not done, execution proceedings were filed, in which the impugned order has been passed. It is submitted that the present 2 31wp6470.22.odt

petitioner alongwith the Respondent No.1 were the plaintiffs in RCS No.61/2010 and are the decree holders. On an earlier occassion when the warrant of possession was issued, the warrant could not be executed on account of obstruction by the petitioner, who claimed to have been delivered possession by the judgment Debtor.

4] The petitioner who was the decree holder No.3 in execution proceedings, thereafter filed an application for appointment of Commissioner under Order XXVI Rule 9 of CPC (Exh.63, page 64) claiming that she had received possession through her power of attorney and therefore the same was required to be verified, as the decree stood satisfied. The learned executing Court by the order dated 16.7.22 has rejected the said application and thereafter has issued warrant of possession, special bailiff and police protection for execution of the decree at the behest of the Respondent No.1, who is the decree holder No.2. Mr. Vastani, learned counsel for the petitioner submits that since the possession of the premises has been received by the petitioner who is the decree holder no.3, the decree stood satisfied and therefore, became unexecutable. Reliance is placed by him on Sree Sree Iswar Sridhar Jew vrs. Jnanendra Nath Ghose and ors., AIR 1960 Calcutta 718 (para 9 and 17).

5] What is material to note is that the decree passed in RCS No.61/2010, is a joint decree for possession in favour of all the plaintiffs. It is also not in 3 31wp6470.22.odt

dispute that the present petitioner as well as the Respondent No.1 both were plaintiffs in the said suit. The possession admittedly has not been delivered by virtue of execution of the decree on account of a possession warrant having been duly executed by the Court and therefore, in so far as the executing Court is concerned, the decree remains still unsatisfied. Though the petitioner who is the decree holder No.3 claims to have received possession from the power of attorney of the judgment debtor No.1, in so far as the decree holder No.2 is concerned, there is no authority on behalf of him for the petitioner/decree holder No.3 to act for and on his behalf. Any action which the decree holder No.3 has done dehors the execution proceedings could not be termed to be action in execution of the decree and therefore, the decree cannot be held to be satisfied and no longer executable at the behest of the decree holder No.3 alone. Sree Sree Ishwar (supra) is on a ground that one of the decree holders cannot execute decree against another joint decree holder. In the instant case it is apparent that decree has not been executed at all and remains unsatisfied against the judgment debtors, in view of which, I do not see any reason for interference in the impugned orders on this ground. No other ground was argued. The petition is therefore without any merits and is dismissed. No costs.

Digitally sign byRAJESH

JUDGE VASANTRAO JALIT Location:

Signing Date:17.10.2022 19:53 Rvjliat.