Bombay High Court
Shri. Ramchandra Krushnaji ... vs Shri. Balasaheb Vishnu Kharat ... on 19 October, 2023
Bench: Amit Borkar
2023:BHC-AS:31479
502-wp-8397-2023.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8397 OF 2023
Ramchandra Krishnaji Kharat
(Deceased)
Through Legal Heirs ... Petitioners
V/s.
Balasaheb Vishnu Kharat (Deceased)
Through Legal Heirs & Ors ... Respondents
Mr. Nachiket Khaladkar, for petitioner.
Mr. Tejas Deshmukh a/w Mr. H. D. Chavan, for
respondent No.1A to 1D.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 19, 2023
P.C.:
1. Challenge in this writ petition is to the orders passed by the
Executing Court dated 15 April 2023 directing delivery of
possession and rejection of objection raised by the petitioner under
Section 47 of the Code of Civil Procedure, 1908.
2. It appears that respondent/decree holder filed Special Civil
Suit No.1266 of 2006 before the Civil Court. The Trial Court by
judgment and order dated 8 January 2008 passed decree of
possession. The Civil Appeal No.126 of 2008 filed by the petitioner
was dismissed by the Appellate Court on 16 December 2010.
3. This Court dismissed Second Appeal No.584 of 2012 arising
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out of Civil Appeal No.126 of 2008 on 27 January 2014.
4. The decree holder in the meantime filed Execution Petition
bearing Regular Darkhast No.76 of 2011.
5. The petitioner on 1 April 2022 filed an application under
Section 47 of the Code of Civil Procedure, 1908. The petitioner
inter alia raised two objections: first, the suit as was filed was not
maintainable in absence of relief of declaration; second objection
is in relation to non joinder of necessary parties.
6. The Executing Court by impugned order rejected the
application. Hence, the petitioner has filed present writ petition.
7. Learned Advocate for the petitioner submitted that the
impugned order is passed without giving opportunity of hearing to
the petitioner. According to him, the objection of maintainability of
suit gives to the root of the matter; hence, the decree is
unexecuted.
8. On perusal of the order dated 15 April 2023, it appears that
on 15 April 2023, the Executing Court rejected adjournment
application of the judgment debtor as on earlier occasion, the
judgment debtor was granted last chance. In my opinion, once in
Execution proceeding, the Executing Court while adjudicating
application under Section 47 of the Code of Civil Procedure, 1908
grants last chance to the judgment debtor, the adjudication on
objection under Section 47 of the Code of Civil Procedure, 1908
cannot be termed as decision without giving sufficient opportunity
of hearing to the petitioner. Ultimately, in Execution Petition, it is
the duty to the Executing Court to execute the decree as
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expeditiously as possible. What is contemplated is reasonable
opportunity of hearing to the judgment debtor in the context of
objection under Section 47 of the Code of Civil Procedure, 1908,
once the Executing Court grants last chance to the judgment
debtor, it is obligatory on the judgment debtor to remain present
and make oral submissions.
9. Therefore, passing of order without hearing to the petitioner
cannot be said to be an order in breach of principles of natural
justice. Even otherwise also the Apex Court in the case of M/s
Dharampal Satyapal Ltd Versus Deputy Commissioner of Central
Excise & Ors reported in 2015(8) SCC 519 has held that mere
breach of principles of natural justice is no ground to interfere that
the impugned order. Unless the petitioner's shows legal prejudice
is caused to him. To adjudicate as to whether legal prejudice is
caused to the petitioner, I have considered the objection raised by
the petitioner on merits. According to him, the suit has filed was
not maintainable in absence of declaration of ownership.
10. Therefore, there is no legal prejudice cause to the petitioner.
11. The Apex Court in the case of Dhurandhar Prasad Singh
Versus Jai Prakash University And Ors., reported in 2001 (6) SCC
534 has held the power of Executing Court while entertaining
application under Section 47 is microscopic. The decree becomes
inexecutable, the decree is void or had been passed by the Court
which lack inherent jurisdiction to entertain the suit.
12. In the facts of the case, the decree passed by the Court
cannot be said to be passed by a Court which lack inherent
502-wp-8397-2023.doc
jurisdiction; therefore, the decree can neither be termed as void or
pass by a Court which lack inherent jurisdiction. Learned Advocate
for the petitioner raised objection that the Civil Court had no
jurisdiction and it is only Small Causes Court which could have
entertained the suit. However, the Appellate Court in paragraph 32
has decided the said objection. This Court in Second Appeal
No.584 of 2012 has confirmed the judgment of the Appellate
Court; therefore, the Appellate Court's judgment merge judgment
of this Court. Hence, the Executing Court has no power to
adjudicate the issue which the superior Court had adjudicated in a
substantive appeal arising out of suit. Hence, there is no substance
in the objection.
13. This Court on occasion to consider effect of passing of order
whereby the Court had granted last chance. This Court in Dhanraj
Lilaram Motwani And Ors. Versus Rajendra Kumar Dayachand Jain
And Ors., reported in AIR 1996 Bom. 3, held that once the Court
grants last chance, it is not advisable to grant adjournment in the
matter. The same principle is applicable in full force in execution
matters, while deciding application under Section 47 of the Code
of Civil Procedure, 1908. Hence, in my opinion, there is no error of
jurisdiction committed by the Trial Court while passing impugned
order.
14. The writ petition is, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
