Bombay High Court
Goba Lalchand Pawar Died Through Lrs ... vs Vithabai Shankar Bhojane Died Throug ... on 18 December, 2023
2023:BHC-AUG:27201
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14944 OF 2023
GOBA LALCHAND PAWAR DIED THROUGH LRS NARAYAN
GOBA PAWAR AND ANOTHER
VERSUS
VITHABAI SHANKAR BHOJANE DIED THROUGH LRS
SAHEBRAO SHANKAR BHOJANE AND OTHERS
...
Advocate for Petitioner : Mr. K.F.Shingare
Adv h/f : Mr. Satyajit S. Bora
Advocate for Respondent : Mr. Yogesh D. Kale
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 18th DECEMBER, 2023
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith with the consent of
the parties. Heard this matter finally.
2. Heard learned counsel Mr. K.F.Shingare for the petitioner
and learned counsel Mr.Satyajit S. Bora holding for Mr. Yogesh D.Kale
actually for the respondent No. 1 who is contesting party. The respondent
No.2 to 6 did not contest the applications. They are formal parties.
3. The petitioners are challenging common order dated
15.09.2023 passed by learned joint civil judge junior division of
Kannad, Dist. Aurangabad below Exh-159,162 and 165 in Regular
Darkhast No. 10 of 2004. By the impugned order, the application of the
decree holder (Exh.159) is partly allowed whereas applications Exh-
(162,165) of the judgment debtors are rejected.
4. The petitioners are judgment debtors and the respondent No.
1 is decree holder. The remaining respondents are the judgment debtors.
The respondent No. 1 had filed RCS No. 155 of 1999 for declaration,
possession and injunction and it was decreed on 02.08.2003. Against
that, RCA No. 112 of 2009 was preferred but it was dismissed. Then,
second appeal No. 406 of 2011 was filed but it was also dismissed. The
decree was confirmed by the Supreme Court also.
5. The Respondent No.1 filed Regular Darkhast No. 10 of
2004 which is pending before the civil judge junior division, Kannad.
The petitioners filed Exh-162 under section 47 of CPC raising objection
for the execution of the decree and for recalling an order of 'Possession
warrant'. Another application Exh-165 was filed by the petitioner
seeking permission to lead evidence in support of objections to
execution.
6. The respondent No. 1 filed application Exh-159 for
'Possession warrant' and appointment of the Deputy Superintendent of
land record for fixing the boundaries for handing over of the possession.
The above applications are contested by adversaries. By impugned order,
application Exh-159 was partly allowed appointing Taluka Inspector of
land record as 'Court Commissioner' for conducting measurement and
handing over of the possession. The applications Exh-162 and 165 are
rejected.
7. The learned counsel for the petitioner submits that the
executing court committed perversity in rejecting the application Exh-
162 and 165 and allowing application Exh-159. The learned judge
overlooked the subsequent events of alienation effected by legal heir of
the respondent No.1, Sahebrao. No land is left for the execution. It is
contended that the decree is unexecutable and the respondent
No.1/decree holder is taking disadvantage of the decree.
8. Learned counsel would submit that there is no proper
identification of the boundaries of the suit land. The land in possession
of the petitioner bearing Gut No. 129 is sought to be grabbed by the
respondent No. 1. The possession warrant which is at the Exh-158 is for
entire 21 acre and 17 gunthas, but the respondent No. 1 is entitled to half
of the portion only.
9. Learned counsel further submits that there are serious
objections for which evidence is necessary. Against rejection of
application under section 47 there is remedy of appeal and hence it is
submitted that liberty may be granted to prefer the appeal. He would
submit that impugned order is unsustainable as the contentions raised by
the petitioners have not been dealt with. He seeks to rely upon judgment
of the Supreme Court in the matter of Jini Dhanrajgir and another
Versus Shibu Mathew and another etc., 2023 SCC OnLine SC 643 and
judgment in Writ Petition No. 4427 of 2019 passed by Nagpur Bench in
the matter of Pradeep Ramgopal Gupta Versus Rukminibai Rammanohar
Shahu and others.
10. Per contra, learned counsel for the respondent No.1 submits
that there is no confusion regarding identification of the suit land. The
decree for possession is passed in respect of land Gut No. 126. The land
gut No. 129 is attached to recover the cost. A confusion is tried to be
created by showing a boundary of gut no. 129 to mislead this court by
the petitioner. The respondent is not seeking possession of land in gut no.
129.
11. Learned counsel submits that legal heir of respondent
No.1,Sahebrao assigned the decree to his family members without
handing over possession. No prejudice can be said to be caused to the
petitioners. The execution is to the extent of 4 hectare of land in gut no.
126. The respondent No. 1 together with the respondent No. 6 & 7 are
decree holder.
12. Learned counsel for the respondent has vehemently
submitted that the decree passed by the trial court is confirmed upto
Supreme Court. On previous occasion also the High Court refused to
interfere in the orders passed by the executing courts emanating from
rejection of the objection of the petitioners. The petitioners have
protracted the execution and made every attempt to dodge possession.
He would submit that the petitioners are bound by the decree and it has
to be executed as it is.
13. I have considered the submissions of rival parties canvassed
across the bar. The petitioners were directed to place on record common
order dated 20.05.2023 passed below Exh-134,148 and 151 in self same
execution proceedings. There is a reference of this common order in the
impugned order The applications and the common order are placed on
record. There is another common order dated 06 th December,2018 passed
by the High Court in Writ Petition No. 5338 of 2014, 3854 of 2014 and
5339 of 2014.
14. The judgment and decree dated 02.08.2003 passed by trial
court in RCS No. 1551 of 1999 in favour of the respondent No. 1 is
confirmed up to Supreme Court. The petitioners are party to the
proceedings. They are bound by the decree. They are only entitled to
raise objection under section 47 of the CPC. The objections as
contemplated by Order 21 Rule 97 to 102 are not permitted to be raised
by them. The third party who is in possession, the decree holder or the
third party who is claiming possession are only entitled to file
proceedings under Order 21 Rule 97 to 102. In that contingency, only
the permission to lead evidence can be granted to determine independent
right, title or interest. Such is not the position in the present matter.
Therefore, application Exh-165 is rightly rejected.
15. The learned counsel for the petitioner sought reliance on
judgment rendered in Jini Dhanrajgir & Anr. v/s. Shibu Mathew &
Anr. Etc. by Supreme Court. In that matter, application was filed before
the executing court under section 47 read with order 21 Rule 97 of CPC.
There the objectors were third parties. The facts of the case in hand are
totally different. The ratio is not applicable. Similarly, in the judgment
rendered by Nagpur Bench in the matter of Pradeep Ramgopal Gupta
v/s. Rukminibai Rammanohar Shahu and others, the application was
filed under section 47 read with Order 21 Rule 97 of CPC whereas in the
present matter there is no application under Order 21 Rule 97 of CPC.
Hence, the ratio laid down in that judgment is not applicable.
16. It reveals from the record that legal heir of respondent No.
1,Sahebrao partitioned the land in favour of the Kantabai, Dilip and
Shrikant by partition deed dated 12.08.202. That can be said to be
assignment of decree under Order 22 Rule 10 of CPC. The possession
has not been handed over. The decree holder is yet to get the possession
from the judgment debtor. Therefore, the submissions of the
petitioner/judgment debtor that no land is left for execution is devoid of
merits.
17. The decree of possession is sought to be executed in respect
of the land gut no. 126. The land gut No. 129 is belonging to the
petitioner which is attached for recovery of cost only. The petitioners are
misleading the executing court by showing boundaries of land gut no.
129 with the boundaries of gut no. 126. In fact, there is no confusion.
18. It reveals from the record that the petitioners raised various
objections previously also. Application Exh-134 was filed for issuing
warrant of possession, application Exh-136 was filed for objection under
section 47 and application Exh-151 was filed by petitioners for leading
evidence. By common order dated 20.05.2023, application Exh-134 filed
by the respondent No. 1 was allowed. The application Exh-136,148 and
151 were rejected. The executing court rightly referred to this common
order to hold that repetitively the petitioners are raising objections to the
execution of the decree.
19. It has been brought on record that Writ Petition No. 5338 of
2014, 3854 of 2014 and 5339 of 2014 were filed by the petitioners
against the rejection of their applications. The following are the findings
recorded by the High Court in the common order dated 06 th December,
2018 for rejecting the Writ Petition.
"6) In both these petitions,the learned Civil Judge has referred
to appointment of the Court Commissioner passed below Exh 37.
The Court Commissioner filed his report vide Exh.65 alongwith
the map. The Court Commissioner also submitted a report at
Exhibit No. 85. The petitioner has sought to contend that the
boundaries in the report of the Court Commissioner and the
boundaries in the decree and execution do not match with each
other. The learned Civil Judge has rightly criticised this
contention as an attempt to postpone the execution proceedings.
Merely by creating some suspicion about identity of the property,
the execution of decree passed in the year 2003, cannot be
deferred. The learned Civil Judge has looked into this contention.
He has also looked into the report of the Commissioner and the
map. The suit property is categorically identified and some of the
names in the report are of unauthorised occupants. The learned
Counsel for the respondent/plaintiff has pointed out that the
execution application is in consonance with the decree and the
description of the property is in the plaint.
7) Apart from this position, it is settled that the decree will
have to be executed as it is and as per the schedule. The
application to call the Commissioner again to ascertain identity
of the property, has been correctly rejected by the learned Civil
Judge on the ground that it is only to prolong the matter. The
order passed on the possession warrant was kept in abeyance and
in furtherance of the same, the order was passed on 21 February
2014.
8) Notices were issued in these petitions in the year 2014.
Since various respondents could not be served, the petitions have
remained pending and the decree has not been executed.
9) In these circumstances, there is no merit in any of the
petitions filed by the judgment debtor. These petitions are
nothing but attempt to deprive the respondent/plaintiff from fruits
of the decree, after having succeeded throughout in the
proceedings upto the Supreme Court. The writ petitions are
rejected.
10) Needless to clarify that the learned Civil Judge will ensure
that the decree is executed as per the description in the execution
application."
20. In the wake of the observations in earlier round of litigation
especially in paragraph No. 9 as stated above, I hold that the applications
of the petitioners are successive attempts to protract the execution of the
decree under one pretext or the other. Their conduct is depricated. There
is absolutely no merit in the petition.
21. The learned executing court has taken abundant precaution
by appointing the commissioner to measure the land, to fix the
boundaries and thereafter to hand over the possession. Considering the
history and the conduct of the petitioners, the impugned order is
appropriate and reasonable. I do not find any substance in the submission
of learned counsel for the petitioner for granting them liberty to file the
appeal. The decree is executable and all rights of the petitioners have
been adjudicated.
22. There is no perversity or any patent illegality in the
impugned order. Writ Petition is dismissed with costs.
[ SHAILESH P. BRAHME, J. ]
Thakur-Chauhan/-
Signed by: Sushma P. Chauhan
Designation: PA To Honourable Judge
Date: 04/01/2024 17:45:50
