Smt. Beby Wd/O Kishor Kolhekar And ... vs Smt. Shantabai Wd/O Gangadhar ...
2023 Latest Caselaw 10574 Bom

                                                                   1                5-6894-23.odt


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

                                   WRIT PETITION NO. 6894/2023

                     Beby wd/o Kishor Kolhekar and another
                                      Vs.
               Smt. Shantabai wd/o Gangadhar Kolhekar and others

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

                                   Mr. A.V. Lokhande, Advocate for petitioners


                                   CORAM:         AVINASH G. GHAROTE, J.

DATED : 11th OCTOBER, 2023

Heard Mr. Lokhande, learned counsel for the petitioners.

2. The petition questions the order dated 23/8/2023 passed by the Executing Court below Exh.32 which is objection under Order 21 Rule 97 R/ w Section 47 of the Code of Civil Procedure (CPC). The objection has been dismissed by the Executing Court on the ground that such an objection at the behest of decree holder is not maintainable. It is contended that considering the language of Order 21 Rule 97 of CPC, which uses the expression "the person" such an objection is permissible to be raised by the judgment debtor. I am afraid I am unable to agree with this contention for the reason that Order 21 Rule 97 of CPC, would necessarily contemplate 2 5-6894-23.odt

the objection being decided in terms of Order 21 Rule 101 of CPC, which would require evidence to be led and the adjudication is given the status of decree under Rule 103 of CPC, which in turn is appealable. In the case of the judgment debtor, the trial Court while deciding the lis has already adjudicated the inter se dispute between the parties and, therefore, it was not permissible for the judgment debtor to open another front by invoking the provisions of Order 21 Rule 97 of CPC. Doing so, it would only amount to setting the decree which is put to execution at not which is impermissible in law. I do not see any reason to interfere in the impugned order. The petition is dismissed. No costs.

(AVINASH G. GHAROTE, J.) MP Deshpande

Signed by: Mr. M.P. Deshpande Designation: PA To Honourable Judge Date: 11/10/2023 15:04:42