Ashok S/O Ramsa Dhage vs Babanappa Narayanappa Dukandar ...
2023 Latest Caselaw 1704 Bom

                                                             1                                  17-wp-1096-23.odt


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

                                  WRIT PETITION NO. 1096/2023

                          Ashok s/o Ramsa Dhage
                                    Vs.
            Babanappa Narayanappa Dukandar (Dead) Through LRs

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Ms. Radhika G. Bajaj, Advocate for petitioner


                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 20th FEBRUARY, 2023

Heard Ms. Bajaj, learned counsel for the petitioner.

2. The petition challenges the order dated 24/01/2023, passed below Exh.51, whereby the application under order 21 R/w Rules 97, 101 and 102 of the Code of Civil Procedure (CPC) filed by the judgment debtor, has been rejected by the learned Executing Court.

3. A plea was raised, that the identity of the property, against which a decree passed in Regular Civil Suit No.97/1996, was sought to be executed was not the same and the decree was sought to be executed in respect of different property. The description of the property is described in para 1 of the decree (page 23). The schedule of the property in the execution proceedings is identical to the property as described in 2 17-wp-1096-23.odt

plaint. A plea is raised, that the property was erected on the land belonging to Nagar Parishad and therefore, the decree was inexecutable. In my considered opinion, once it is an admitted position between the parties regarding the identity of the property as mentioned in the decree as well as in execution, the plea that the property is situated on Nagar Parishad land, cannot come in a way of the decree holder executing the decree, as any grievance which the Nagar Parishad may have can be taken care of by it initiating appropriate proceedings against the decree holder. Insofar as judgment debtor is concerned, this plea cannot come to the benefit of judgment debtor. This plea has rightly been considered by the Executing Court. Though reliance is placed upon Glorio Rosario Furtado (D) through Legal Heirs Vs. Cathedral Chapter of the Archdioese of Goa and Daman and others reported in 2016 (2) Mh.L.J. 854, which says that where an objection under Section 47 of CPC is raised, the enquiry has to be held, however, in the instant case, the objection is not under Section 47 of CPC, but, it is under Rule 97 R/w Rules 101 and 102 of CPC, which is not available to the petitioner, considering which the judgment in the case of Glorio Rosario Furtado Vs. Cathedral Chapter of the Archdioese of Goa is not applicable on the four- corners. The petition is therefore, dismissed. No costs.

JUDGE Digitally signed by:MILIND P DESHPANDE Signing Date:21.02.2023 10:19 MP Deshpande