Bombay High Court
Mr.Mahesh R. Sharma vs Terrance Joseph Gudinho And Others on 29 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4895
Neeta Sawant 1/5 9-SA-143-2021.docx(FC)
Monday, 29 January 2024.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 143 OF 2021
ALONGWITH
INTERIM APPLICATION NO. 17252 OF 2022
ALONGWITH
CIVIL APPLICATION NO. 261 OF 2019
IN
SECOND APPEAL NO. 143 OF 2021
Mr. Mahesh R. Sharma ..Appellant
V/s.
Terrance Joseph Gudinho & Ors. ..Respondents
_________
Mr. Atul Damle, Senior Advocate a./w. Mr. Dharam Sharma
i/by. Dharam & Co. for the Appellant.
Mr. A.J. Almeida, for Respondent Nos.1 and 2.
__________
CORAM : SANDEEP V. MARNE, J.
Dated : 29 January 2024.
P.C. :
1. The challenge in the present Appeal is to the Judgment and
Order dated 15 June 2018 passed by the District Judge-2, Thane
dismissing Regular Civil Appeal No. 68 of 2016 and reversing the Order
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dated 1 August 2012 passed by the Executing Court. By order dated 1
August 2012, the Executing Court had partly allowed the application
at Exhibit-45 filed by the Obstructionist/Appellant and held that the
decree passed in Special Civil Suit No. 1337/96 is not executable to the
extent of properties mentioned by the Obstructionist in his application.
2. I have heard Mr. Damle learned Senior Advocate appearing for
the Appellant and Mr. Almeida learned counsel appearing for
Respondent Nos.1 and 2.
3. After having considered the submissions canvassed by the
learned counsel appearing for the parties, it is seen that Respondent
Nos.1 and 2 had instituted Special Civil Suit No.1337 of 1996 seeking
specific performance of the Agreement for Sale dated 29 June 1982 in
respect of Suit Galas Nos. B-4 and B-5 admeasuring area of 1000 sq.ft.
in Laxmi Narayan Industrial Estate. The Suit was decreed on 31
August 2000 directing the Defendant No.1 to execute Sale-Deed in
favour of the Plaintiffs in respect of the Suit Galas. It appears that the
execution proceedings were opposed by the Judgment Debtors before
the Executing Court by taking a defence, inter-alia, that the suit
property is a non-existent property. The said defence was however
rejected and the execution proceedings progressed further. In those
execution proceedings, decree holders filed application after noticing
obstruction by Appellant for his removal from Suit Galas. Similarly,
Appellant also filed Obstructionist Application at Exhibit-45 seeking a
declaration that the decree is not executable and for dismissal of the
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execution proceedings. The application of the Appellant was premised
on alleged purchase of Gala No. 4 admeasuring 755 sq.ft and Gala No. 5
admeasuring 805 sq.ft. It was the case of the Appellant that the two
galas purchased by him are entirely different than the ones in respect of
which decree is passed in Special Civil Suit No. 1337/1996. The
Executing Court accepted the contention of the Appellant and held
that the Decree passed in Special Civil Suit No.1337 of 1996 is not
executable to the extent of the properties of the Obstructionist. The
First Appellate Court has however reversed the finding of the
Executing Court and has held that the Decree passed in Special Civil
Suit No. 1337 of 1996 is in respect of the very same galas which are
claimed to have been purchased by the Appellant/Obstructionist.
4. Though the Trial Court held that the description of the
properties covered by Plaintiff's Agreement dated 29 June 1982 and the
one covered by the Agreements dated 31 May 2006 executed in favour
of the Appellant is different, the first Appellate Court has reversed the
said finding by holding that the description of the property in both the
Agreements is "Survey No.50, Hissa No.4(Part) admeasuring 1193.8
sq.mtrs'. The only difference is non-mentioning of Village-Goddev in
the Agreement dated 29 June 1982. So far as the difference in the
numbers assigned to the Galas is concerned, it appears that in
Plaintiff's Agreement dated 29 June 1982, the Galas were numbered as
B-4 and B-5 whereas in the Agreements executed with the Appellant,
the same are numbered as Gala Nos.4 and 5. Similarly, the area of galas
in both the sets of agreement is also different. In my view, since the
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vendor of the Appellant has attempted to create rights in respect of the
property covered by the Decree dated 31 August 2000, the description
of Galas is deliberately indicated differently than the one indicated in
the Agreement dated 29 June 1982. Though the area of Gala Nos.4 and
5 allegedly sold to the Appellant is indicated as 755 sq.ft and 805 sq.ft
in the Agreements dated 31 May 2006, the said area in indicated as
'super built-up area'. The super builtup area of 755 sq.ft and 805 sq.ft
would roughly match with the area of 500 sq. ft each of two Galas
agreed to be sold to Plaintiff. In my view, therefore the description of
the galas was deliberately shown differently than the one reflected in
the Agreement dated 29 June 1982 for the sole purpose of defeating the
Decree passed in Special Civil Suit No. 1337 of 1996.
5. The first Appellate Court has also taken note of the fact that out
of the total consideration of Rs.7,05,000/- shown for purchase of Gala
No. 4, amount of only Rs.5,000/- was paid on the date of execution of
the agreement and that no evidence was produced before the Executing
Court to demonstrate payment of balance amount of consideration.
6. Considering the overall circumstances of the case, the first
Appellate Court has rightly arrived at the conclusion that the
Agreements are subsequently executed in favour of the
Appellants/Obstructionist solely for the purpose of defeating the
decree passed in Special Civil Suit No. 1337 of 1996. No substantial
question of law is involved in the Appeal. The Appeal is accordingly
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rejected. Interim Application and Civil Application taken out therein
also do not survive. The same also stand disposed of.
SANDEEP V. MARNE, J.
7. After the order is dictated, the learned counsel appearing for the
Appellant would request for continuation of the order dated 6
September 2022 passed by this Court, by which further execution of
the Decree was stayed till the next date of hearing. The request is
opposed by the learned counsel appearing for Respondent Nos.1 and 2.
Considering the fact that the sale transaction shown in the name of the
Appellant is solely for the purpose of frustrating the Decree passed in
Special Civil Suit No. 1337 of 1996, which was decreed almost 24 years
ago on 31 August 2000, I am of the view that the execution of the
Decree cannot be delayed any further. Accordingly, the request for
continuation of stay order is rejected.
SANDEEP V. MARNE, J.
