Bombay High Court
Vishnu S/O Rambhau Karande And Others vs Tulsabai Purushottam Kolte And Others on 26 February, 2025
2025:BHC-NAG:2106
-- 1 -- WP 7435.2019 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7435 OF 2019
1. Vishnu S/o Rambhau Karande
age : 60 years, Occ. Agriculturist,
R/o Harnkhed, Tahsil - Malkapur,
District - Buldana
2. Nirmala W/o Dnyandeo Bhole,
age : 66 years, Occ : Household
R/o Tandulwadi, Tahsil - Malkapur, .. Petitioners
District - Buldana
3. Asha Ashok Naphade,
age : 56 years, Occ : Household
through Sachin Ashok Naphade,
R/o Radhakrishna Society, Malkapur,
Tahsil - Malkapur, District - Buldana
Versus
1. Tulsabai Purushottam Kolte
age : 75 years, Occ : Household,
R/o Narvel, Tahsil - Malkapur,
District - Buldana
2. Prakash Rambhau Karande,
age : 59 years, Occ : Business,
R/o Kalpana Apartment,
Plot No.39/40, Atre Layout,
Nagpur District Nagpur.
.. Respondents
3. Rajendra Rambhau Karande,
age : 49 years, Occ : Business,
R/o Kalpana Apartment,
Plot No.39/40, Atre Layout,
Nagpur District Nagpur.
4. Smt. Padmini Vilas Kolte,
age : 72 years, Occ : Household,
R/o Shivkrupa Chawl, Room No.11/2
Kapote Nagar, Thankar Pada,
Kalyan West, District Thane 421301
PAGE 1 OF 7
-- 2 -- WP 7435.2019 (J).doc
5. Smt. Usha Baliram Kolte (Dead)
through legal representatives,
A. Suhas Baliram Kolte
age : 55 years Occ : not known
B. Milind Baliram Kolte
age : 53 years, Occ : not known
C. Upendra Baliram Kolte
age : 48 years, Occ : not known
All respondents 5A to 5C are .. Respondents
R/o Plot No.95, Telecom Colony,
Ushakala Building, Pratap nagar,
Khamla Nagpur
6. Indira @ Pushpa Sudhakar Patil
age : 54 years, Occ : Household,
through Sudhakar Bhaskar Patil,
R/o A-501, Sunder Nagar,
Near Gajanan Maharaj Temple,
Adjacent to Manisha Nagar,
Kalyan, District Thane
---------------------------------------------------------------------------
Mr. R.N. Badhe, Advocate for petitioners.
Mr. A.S. Manohar, Advocate for respondents.
---------------------------------------------------------------------------
CORAM : ABHAY J. MANTRI, J.
DATE : FEBRUARY 26, 2025
ORAL JUDGMENT
Heard. Rule. Rule made returnable forthwith. Heard finally
with the consent of the learned counsel appearing for the parties.
(2) The petitioners are assailing the order dated 26/08/2019,
passed in MJC No.05/2015 in R.D. No. 04/2008 by the learned 2nd
Joint Civil Judge Junior Division Malkapur (for short- the 'learned
PAGE 2 OF 7
-- 3 -- WP 7435.2019 (J).doc
judge',) which rejected the objection raised by the petitioners under
Section 47 of the Code of Civil Procedure (for short-'CPC').
(3) In brief, the facts are that the original plaintiff Parvatibai
filed a suit against the petitioners and respondents No.2 to 6 for
partition and separate possession of movable and immovable properties
bearing Regular Civil Suit No.63/1981(for short-'RCS'); the same was
decreed on 19/04/1984. Against the said decree, the petitioners
preferred the First Appeal before the District Court and the Second
Appeal, bearing No.309/1988, before this Court. The Second Appeal
was dismissed with modification in the judgment and decree passed by
the trial Court on 05/04/2005. Thereafter, the respondent No.1, being
the legal heirs of Parvatibai, i.e., the decree holder, has filed the
execution proceeding bearing Regular Darkhast No.04/2008. During the
pendency of the said execution, petitioners filed an objection under
Section 47 of CPC on 05/10/2015. Similarly, the decree holder filed an
application for the determination of the valuation of the property
mentioned in Schedules 3 and 4 as per the market rate as of
05/10/2015. The application was allowed on 12/01/2018, and the
judgment debtor was directed to determine the market value of the
properties mentioned in Schedules 3 and 4. The petitioners did not
challenge the said order; however, subsequently, the objection raised
by the petitioners was registered as MJC No.05/2015, and the learned
Judge, after considering the same, rejected the same on 26/08/2019.
PAGE 3 OF 7
-- 4 -- WP 7435.2019 (J).doc
Being aggrieved by the same, the petitioners have filed this petition.
(4) Learned counsel for the petitioners vehemently
contended that they have not received any property as mentioned in
Schedules 3 and 4 from their father. It is further claimed that the
movable properties and livestock are not in existence. Therefore, the
decree in respect to the same cannot be executed, and consequently,
he has moved this application and urged for allowing the petition.
(5) Per contra, the learned counsel Mr. Atharva Manohar, for
respondent No.1, vehemently resisted the petition, contending that the
petitioners have not challenged the order passed by the Court below at
Exh.95 on 12/01/2018 and, therefore, by way of objections, the
petitioners cannot challenge the impugned order. The learned Judge
has already decided the application on 12/01/2018, and consequently,
the subsequent order is hit by the principle of "Res judicata" as
subsequent objection is not tenable. The learned Trial Court has
already decided the said question. Therefore, the same cannot be re-
agitated, or it would not be appropriate to re-consider the said
objection afresh by the Trial Court. To substantiate his contention, he
has relied upon the decision of the Hon'ble Apex Court in the case of
C.V. Rajendran vs. N.M.Muhammed Kunhi reported in (2002) 7 SCC
447 and pointed out para 6. Thus, he submitted that the order passed
by the learned Trial Court is just and proper and no interference is
required; hence, he urged to dismiss the petition.
PAGE 4 OF 7
-- 5 -- WP 7435.2019 (J).doc
(6) I have appreciated the submissions of learned counsel for
both parties. Original Judgment Debtors/respondents No.2 to 6 though
served chose to remain absent. Perused the impugned order and
record, as well as judgment relied upon by learned counsel for the
respondent No.1.
(7) At the outset, it appears that on 19/04/1984, the trial
Court passed judgment and decree. The petitioners challenged said
judgment and decree before the District Court and this Court. This
Court has dismissed the Second Appeal no.309/1988; however, it
modified the judgment and decree passed by the learned trial Court to
the extent that "Tulsabai, legal heir of respondent Parvatibai, holding
that she is entitled to a 1/4th share in the suit property and, therefore,
entitled to separate possession thereof."
(8) It further appears that in 2008, the decree holder filed an
execution petition bearing Regular Darkhast No.04/2008. During the
pendency of the said petition, the petitioners filed an application under
Section 47 of the CPC and objected to executing the decree to the
extent of Schedules 3 and 4 of the decree, as they have not received
the said movable properties and livestock from their father, and the
same is not in existence. The said objection was reagitated in MJC
No.05/2015. Similarly, the decree holder respondent No.1 filed an
application in an execution petition to determine the market value of
the properties mentioned in Schedules 3 and 4 and for the release of
PAGE 5 OF 7
-- 6 -- WP 7435.2019 (J).doc
1/4th share of the respondent No.1 Tulsabai in her favour. Likewise, the
respondent No.1 filed a reply to the objection raised by the petitioners.
(9) After considering the record, the learned Trial Court
allowed the application Exh.95, thereby directing the judgment debtors
to determine the market value of the properties mentioned in
Schedules 3 and 4. The said order was passed on 12/01/2018.
However, the petitioners have not challenged that to this date. But the
petitioners are challenging the order passed in MJC No.05/2015, which
was passed subsequent to the order passed on Exh.95. The learned
Trial Court, while passing the order, observed that Rambhau had the
movable properties, and after his demise, it came to the possession of
the applicants. So, they are bound to bring these movable properties to
satisfy the decree.
(10) The learned Trial Court has considered the order passed
below Exh.95 and all the other aspects, as well as the Commissioner's
report on record, and held that no substance has been found in the
objection raised by the petitioners and rejected the petition. However,
learned counsel for the petitioners failed to point out the illegality and
perversity of the impugned order. Per contra, it seems that the
petitioners are not disputing that the properties mentioned in
Schedules 3 and 4 were in Rambhau's possession, but they only
contended that they did not receive them from him and that they were
not in existence. Even assuming the contention of learned counsel for
PAGE 6 OF 7
-- 7 -- WP 7435.2019 (J).doc
the petitioners that they have not received the same or not in
existence, then in that case, the decree holder could not be able to
execute the same to that extent and if it is in existence or available
with the petitioners then respondent No.1 can able to execute the
decree to that extent. If respondent No.1 is permitted to execute the
decree with respect to Schedules 3 and 4 in question, it would not
cause prejudice to the petitioners; on the contrary, it would help to
determine the controversy between the parties. For that purpose, I also
do not find substance in the objection raised by the learned counsel for
the petitioners. Moreover, the petitioners admittedly did not challenge
the order dated 12/01/2018, which passed below Exh.95.
(11) In the aforesaid background, in my view, the petition is
bereft of merit; as such, it stands dismissed. No costs.
Rule is discharged. Inform the learned trial Court
accordingly.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 7 OF 7
Designation: PA To Honourable Judge
Date: 03/03/2025 17:37:18
