Bombay High Court
Ruprao S/O Hathuji Talmale And Others vs Kishor S/O Sohanlalji Kalra on 2 January, 2025
2025:BHC-NAG:73
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1280 OF 2020
1. Ruprao s/o Nathuji Talmale,
aged about 60, Occ. Cultivation,
2. Ramnath s/o Nathuji Talmale,
aged about 58, Occ. Cultivation,
3. Madhukar s/o Nathuji Talmale,
aged about 62, Occ. Cultivation,
4. Jagannath s/o Nathuji Talmale,
aged about 51, Occ. Cultivation,
5. Shankar s/o Nathuji Talmale,
aged about 50, Occ. Cultivation,
All r/o Pipla (DB),
Tahsil Saoner, District Nagpur .....PETITIONERS
...V E R S U S...
Kishor s/o Sohanlalji Kalra,
Age Major, Occ. Business,
r/o Chhaoni, Ring Road,
509/1, Near Railway Gate,
Byramji Town, Nagpur .....RESPONDENT
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Mr. V.D. Muley, Advocate for petitioners,
Mr. S.D. Deoras, Advocate for respondent.
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CORAM:- ABHAY J. MANTRI, J.
DATE : 02.01.2025
JUDGMENT (Per: Abhay J. Mantri, J.)
Heard learned Counsel for the respective parties.
The petitioners /Decree Holders (for short -' DH'') are
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challenging the order dated 30.07.2019, passed by learned Civil Judge
Junior Division, Saoner, passed below exhibit 32 in the execution
proceeding bearing Regular Darkhast No. 08/2015, thereby allowing
the application for restoring the execution proceeding to its original
stage.
2. Brief facts of the case are as under.
(a) In 2012, petitioners/plaintiffs/DH filed a suit
for declaration, permanent injunction, and possession of the suit
properties. During the pendency of the suit, on 23.11.2013, the same
was referred to the National Lok Adalat. Accordingly, the matter was
settled between the parties before the Lok Adalat. Pursuant to the
settlement, they filed consent terms. Accordingly, a compromise decree
was passed.
(b) Despite the compromise decree, Judgment
Debtor (for short -'JD'') failed to hand over the properties as per the
consent terms. Therefore, in 2015, petitioners filed execution
proceedings. In the execution proceeding, JD appeared and filed an
objection regarding the measurement carried out by the commissioner.
The same was pending before the executing court.
(c) In spite of the pendency of objection, on
18.06.2019, the advocate of the DH filed a pursis contending that DH
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received the possession. Hence, they do not want to proceed with the
execution proceedings. Pursuant to the said pursis, the execution
proceeding was disposed of. However, on the application of JD, the
said order was subsequently recalled on 30.07.2019, and the execution
proceeding was restored to its original stage. Aggrieved by the
restoration order, DH has prepared this petition.
(3) The learned counsel for the petitioners vehemently
contended that a compromise decree had been passed between the
petitioners and the respondent, pursuant to which the petitioners have
filed the execution proceedings. During the pendency of the same, the
petitioners received possession of the disputed property. Therefore, the
petitioners have filed Pursis that they do not want to proceed with the
proceedings. Accordingly, the execution proceedings were disposed of
on 18/06/2019. Thus, he submits that the question of restoration of
the proceeding to its original stage does not arise. However, the trial
court has erred in restoring the proceedings on the grounds that the
objection raised by the JD is pending. He further submitted that said
order was illegal and contrary to the facts and the provisions of law;
hence, he prayed for allowing the petition.
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4. Per contra, the learned Counsel for the respondent/JD
vehemently contended that the JD still possesses the disputed property.
The defendant has not handed over the possession of the property to
DH at any time as per the compromise decree. He further contended
that the cadastral surveyor had not issued any notice to him prior to
measuring the land; therefore, on 11.03.2019, the respondent filed an
objection about said proceeding before the executing court, and the
same was adjourned twice for filing a reply of petitioners but they
failed to file a reply and suddenly on 18.06.2019 have filed Pursis
stating that they do not want to proceed with the proceedings since
they have received possession.
The learned Counsel for JD has drawn my attention to
Pursis and submitted that the DH or JD never signed the Pursis, but the
advocate of the DH signed the same. He has further pointed out that
the objection filed on 11.03.2019 was not decided by the trial Court,
and without determining the same, merely based on alleged Pursis, the
execution proceeding came to be disposed of; therefore, the respondent
has moved an application for restoration of the same. Considering the
facts of the case, the trial Court has rightly restored the execution
proceeding. Therefore, he submitted that no interference is required in
the order at the hands of this Court.
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5. I have appreciated the rival contentions of the parties and
perused the impugned order and record.
6. During the argument, the learned Counsel for the
petitioners was questioned about who had handed over possession of
the disputed property to DH. However, he failed to reply or point out
from the record who handed possession of the property to the
petitioners/DH. However, the learned Counsel has fairly admitted that
no bailiff report shows that JD handed over the possession to DH.
Furthermore, he failed to point out that JD had handed the possession
to DH.
7. A bare perusal of the Pursis denotes that neither DH nor JD
signed the same. Also, from the averment of Pursis, it does not appear
who has handed over possession of the disputed property to DH. The
Pursis is vague. Undisputedly, when the application filed by JD
objecting to the measurement carried out by the cadastral surveyor was
pending, in those circumstances, it was obligatory on the part of the
Court to decide the said application prior to passing the order of
disposal of the proceedings was not appropriate. However, without
considering the said fact, the Trial Court abruptly disposed of the
proceedings on the basis of so-called Pursis; however, subsequently,
realised the mistake so, passed a detailed reasoned order and restored
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the proceedings, holding that to ascertain whether the JD has suo-motu
delivered the possession of the suit property to DH or not and to find
out whether the contents of the Pursis is as per the consent of the JD. It
is also observed that the application filed by JD is pending; therefore,
the said proceeding has been restored. I do not find any illegality or
perversity in the impugned order. Rather, the impugned order is found
to be well-reasoned. The learned Counsel for the petitioners has failed
to point out any illegality in the said order to interfere. On the
contrary, it seems that in the absence of the parties, the counsel for the
petitioner has filed the vague Pursis contending that the DH has
received possession of the disputed property and, therefore, the DH
does not want to proceed further with the proceedings. It has not been
stated how the DH received the possession, nor has he produced any
document to show that DH has received possession by following due
process of law. Hence, I do not find any illegality in the impugned order
to interfere in writ jurisdiction.
8. Consequently, the petition being bereft of merit stands
dismissed with no order as to cost. As a sequel of the above, the
interim order dated 05.03.2020 is vacated. Inform the learned Trial
Court accordingly.
Signed by: Mr. R. S. Belkhede (ABHAY J. MANTRI, J.)
Belkhede
Designation: PA To Honourable Judge
Date: 04/01/2025 13:13:09
