Bombay High Court
Nanasaheb Govind Borude Others vs Vishwanth Gopinath Tarhal Died Lrs. ... on 18 January, 2024
2024:BHC-AUG:1143
936-CA-2302-2023+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 2302 OF 2023
IN SAST/919/2023 WITH CA/2303/2023
WITH CA/4765/2023
Nanasaheb Govind Borude Others
....Applicants
VERSUS
Vishwanth Gopinath Tarhal And Others
.....Respondents
.....
Ms. S. M. Zaware, Advocate for Applicants
Mr. M. A. J. Shaikh, Advocate for Respondent No. 1
...
CORAM : R.M. JOSHI, J
DATE : JANUARY 18, 2024
COMMON ORDER :
1. Learned Counsel for Respondent No. 1 filed
affidavit-in-reply. The same is taken on record.
2. Applicants are purchasers of properties from
Respondents i.e., Original Defendants in RCS No.
164/2007. The said suit came to be filed by Shashikala
seeking partition and possession of the suit
properties. A compromise decree was passed on
13.12.2007. By virtue of the said compromise,
properties were given to the share of defendants. After
10 years of passing of the said decree, Original
Plaintiff - Shashikala preferred Appeal in the year
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2017 challenging the said decree on the ground that the
Plaintiff and her father were forced to sign compromise
terms. Grievance is also made in the First Appeal that
sons of the Plaintiff in whose share properties were
given by virtue of compromise decree are addicted to
vices and they have disposed of properties to the third
party. It is alleged that Plaintiff was not taken care
by her sons. Said appeal proceeded ex-parte and
eventually allowed as sons of the Plaintiff did not
appear before First Appellate Court.
3. Learned Counsel for the Applicants submit that
apparently judgment and decree of setting aside of
compromise decree is obtained in collusion by Plaintiff
and Defendants from the First Appellate Court. It is
her contention that for 10 long years decree is not
taken exception to but only after creation of third
party interests it is sought to be challenged. It is
her further contention that in the memo of appeal
before First Appellate Court it is clearly stated that
third party interest is created in respect of some of
the suit properties and as such, purchasers become
aggrieved party by setting aside of compromise decree
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passed by trial Court. She further contends that delay
caused in preferring present Appeal is genuine as
Appellants did not have knowledge of First Appeal.
According to her, having regard to the interest of the
Appellants in the suit properties, and as apparently a
collusive compromise decree has been obtained from the
First Appellate Court, it is a fit case to grant leave
to these Appellants to prefer Appeal against
impugned judgment and order. As far as application for
stay is concerned, it is contended that since the
Appellants are bona fide purchasers of the properties
for value and transaction in question has been entered
into on the basis of clear title of vendor and
hence, it is necessary to stay impugned judgment
and decree to the extent of properties of the
Appellant.
4. Learned Counsel for the Respondent opposed the
contentions by claiming that the suit properties were
belonging to the father of Plaintiff, as such, even her
sons had no right and title therein. Thus, according to
him, the decree passed by trial Court is rightly set
aside in First Appeal.
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5. Prima facie perusal of the Appeal memo filed
before First Appellate Court does not indicate that
decree passed by trial Court was challenged on any
other ground except on the ground that compromise
pursis was forced to be signed by Plaintiff and her
father. Having regard to this fact, prima facie this
Court finds no substance in the contention of learned
Counsel for the Respondent about raising challenge to
right of sons of Plaintiff in property. At this stage,
this Court finds no reason not to accept contention of
learned Counsel for Appellants that judgment and decree
obtained from First Appellate Court could possibly
collusive decree between mother and sons.
6. In view of the averments in the First Appeal,
it is clear that third party interest is already
created in favour of present Applicants, as such, at
this stage, Applicants could be considered as bona fide
purchasers of the properties in question. Since the
Applicants were not party to the original proceedings
and had no knowledge of the filing of the First Appeal,
delay caused in preferring present Appeal deserves to
be condoned. Having regard to the fact that the
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Applicants have legitimate interest in the properties
in question and they are aggrieved by the order passed
by First Appellate Court, leave is granted to these
Applicants to prefer Appeal.
7. Since transactions pertain to the some of the
suit properties of year 2013, 2016 and 2017 prior to
the filing of the Appeal by Plaintiff, it is just and
necessary to stay the impugned judgment and decree
passed by First Appellate Court to the extent of
properties of Appellants herein.
8. In view of above, applications for leave to
file appeal, condonation of delay and stay are allowed.
There would be stay to the impugned judgment and decree
passed by First Appellate Court to the extent of
properties of Appellants till further order.
9. Appeal be registered.
(R. M. JOSHI, J.)
Malani
