Bombay High Court
Navneet S/O Ramchandra Totla vs Patil Patwari Saray Sansthan, Amravati ... on 7 January, 2025
2025:BHC-NAG:276
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5047 OF 2019
Navneet s/o Ramchandra Totla,
Aged 48 years, Occupation - Business,
R/o C/o Mama Automobiles, Jai Stambh
Chowk, Chandur Bazar Road, Morshi,
District - Amravati. .... PETITIONER
VERSUS
Patil Patwari Saray Sansthan,
A registered Public Trust,
Bearing Registration No. E-59,
Amravati, through its Trustee
Shri Bhaskarrao alia Babanrao
Sheshrao Dhote (Patil),
Aged about 75 years,
R/o & C/o Patil Patwari Sansthan,
Jai Stambh Chowk, Morshi,
Taluka Morshi, District - Amravati. .... RESPONDENT
________________________________________________________________
Mr. C.B. Dharmadhikari, Counsel for the petitioner,
Mr. T.S. Dadhe, Counsel for the respondent.
________________________________________________________________
CORAM : ABHAY J. MANTRI, JJ.
DATE OF RESERVING THE JUDGMENT : 13-11-2024
DATE OF PRONOUNCEMENT OF JUDGMENT : 07-01-2025.
JUDGMENT :
Heard. RULE. Heard finally with the consent of the learned
Counsel for the parties.
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2. The petitioner is aggrieved by the order dated 18-04-2019 passed
by the learned Civil Judge, Junior Division (for short- "CJJD") Morshi,
below Exhibits 42 and 55 in RD. No. 47/2013, thereby rejecting the
objection (Exhibit No.42), and the application for appointment of the
commissioner (Exhibit No.55) filed by the petitioner has preferred this
petition.
3. In brief, the facts are as under:
(a) The respondent/original plaintiff filed suit against the tenant,
Devidas Sheshrao Umale, for recovery of possession of the suit plot and
arrears of rent. The suit was proceeded ex parte, and accordingly, on
01-01-2013, ex parte decree was passed.
(b) Pursuant to the decree, the respondent had filed execution
proceedings before the learned Trial Court. During the pendency of the
said execution proceedings, on 23-12-2016, the petitioner/objector moved
an application under Section 47 of the Civil Procedure Code (for short,
"CPC"), thereby seeking the relief to quash and set aside the ex parte
decree passed on 01-01-2013 in Regular Civil Suit No.74/2012 as well as
declare that the said ex parte decree was obtained by fraud by the
respondent and, therefore, same is not binding on him.
(c) Similarly, the petitioner moved an application under Order
XXVI Rule 9 of the CPC to appoint the court commissioner to inspect the
property in question. The respondent resisted both applications. After
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hearing both parties, the trial Court rejected both applications by a
common order, holding that the petitioner was neither a party to the suit
nor a representative of either of the parties to the suit. Therefore, he
cannot take objection to the execution of the decree, and hence, filing the
objection under Section 47 of the CPC is not tenable.
Being aggrieved by the same, the petitioner/original objector/third
party has preferred this petition.
4. Mr. C.B. Dharmadhikari, learned Counsel for the petitioner,
vehemently contended that since 1998, the petitioner has been in
possession of the suit property as a tenant. However, the respondent has
not issued any receipt for the payment of the rent to him; so also, the
respondent has not made the petitioner a party to the suit when the
petitioner has been in possession of the suit property. Therefore, he
submitted that by playing fraud by the respondent and the judgment-
debtor upon the Court, the ex parte decree was obtained. Hence, the
petitioner intends to object to challenge the ex parte decree.
5. He further pointed out paragraph No.10 of the impugned order and
contended that the trial Court had not considered the ratio laid down in
the judgment cited before it and erred in observing that the facts in the
cited judgment are different than the case at hand and, therefore, the said
findings cannot be sustained in the eyes of the law. Per contra, the
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petitioner possesses the suit property and, thus, is entitled to raise an
objection. Hence, he submitted that the said findings are liable to be set
aside.
6. He further canvassed that the nomenclature of the section in the
application would not affect the rights of the petitioner to object to the
decree. Hence, he submitted that the passing of the order is contrary to
the facts on record.
7. To buttress his submission, he has relied on the judgments of the
Hon'ble Apex Court in the cases of Shreenath and Ors. v. Rajesh and Ors.
reported in AIR 1998 SC 1827 and Asgar and Ors. v. Mohan Varma and Ors.
reported in 2019(133) ALR 736. He has drawn my attention to paragraphs
Nos.5 and 12 in the case of Shreenath and submitted that in view of the
dictum laid down in both the judgments, the petitioner, being the
possessor and tenant of the suit plot, is entitled to object to the decree in
execution proceedings. However, the Trial Court has not considered the
same and erred in holding that the facts in the said judgment are different
than the case at hand. Therefore, he has submitted that the petitioner,
being the possessor and claiming independent right as a tenant, is entitled
to object to the said decree and, therefore, he urged for setting aside the
impugned order by allowing the objection (Exhibit 42) and application for
appointment of the court commissioner to inspect the suit property
(Exhibit No.55).
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8. On the other hand, Mr. T.S. Dadhe, learned Counsel for the
respondent, strenuously argued that the trial Court, after considering the
facts and circumstances of the case as well as the provisions under Section
47 of the CPC, has rightly held that the petitioner has no concern with the
tenant/judgment-debtor and, therefore, has no right to file an application
as an objector. He further argued that the petitioner himself admitted that
he was neither a party to the suit nor a representative of either of the
parties to the suit. Therefore, the findings recorded by the trial court in
that regard are just and proper, and he urged for the dismissal of the
petition.
9. I have appreciated the rival contentions of the learned counsel for
the parties, perused the impugned order, and record and judgments relied
upon by the learned Counsel for the petitioner.
10. It is not disputed that the respondent is the owner/landlord of the
suit property. It is also not in dispute that the petitioner was not a party to
the suit bearing Regular Civil Suit No.74/2012, and also, he is not a legal
representative of the parties to the suit.
11. It reveals that the petitioner filed an objection (Exhibit No.42)
under Section 47 of the CPC in the execution proceedings. In paragraph
No.4 of the application, he categorically stated that one late Devidas
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Sheshrao Umale was the original tenant of the suit property. He was
running a fertilizer shop under the name and style of " Maharashtra Agro
Centre" at the said open plot. He closed his business in 1997-98 and
handed over the possession to the decree-holder/respondent.
12. It is further contended that in 1998, the respondent handed over
the possession of the suit property to the petitioner. Also, the respondent
accepted the rent from him but did not issue the rent receipt, though he
demanded it several times. The said averments itself show that the
petitioner himself admitted that one late Devidas Sheshrao Umale was the
original tenant in the suit property. Though he has claimed that in 1998,
the respondent handed over the possession of the suit property to him, he
has not produced any document in that regard on record; so also, he has
not produced any tenancy agreement or rent receipt on record. Thus,
prima facie failed to show that the respondent inducted him as a tenant of
the suit premises.
13. The petitioner only claims that he was handed over the possession
of the suit property in 1998 and, therefore, is entitled to object to the
decree under Section 47 of the CPC. Thus, the short question arises before
the court is that,
"whether the third party in possession of the property can claim
independent right, who was not a party to a decree under execution
nor a representative of the parties to the suit, could object to such
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decree by seeking adjudication of his objection under Section 47 of
the CPC?"
14. To ascertain the said controversy, it would be appropriate to
reproduce Section 47 of the Civil Procedure Code, which reads as under :
"47. Questions to be determined by the Court executing
decree -
(1) All questions arising between the parties to the suit in
which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the
decree shall be determined by the Court executing the decree
and not by a separate suit.
(2) ***
(3) Where a question arises as to whether any person is or is
not the representative of a party, such a question shall, for the
purposes of this section, be determined by the Court.
Explanation I.- For the purposes of this section, a plaintiff
whose suit has been dismissed and a defendant against whom
a suit has been dismissed are parties to the suit.
Explanation II.-(a) for the purposes of this section, a
purchaser of property at a sale in execution of a decree shall
be deemed to be a party to the suit in which the decree is
passed; and
(b) all questions relating to the delivery of
possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the
meaning of this section."
15. A bare perusal of provisions of Section 47 of CPC reveals that
all questions arising between the parties to the suit in which the decree was
passed, or their representative, and relating to the execution can only raise
the objection in the execution of the decree and as per Clause (3), it is
necessary to determine that the person who raises objection to the
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execution of the decree is or is not representative of a party. In the case at
hand, undisputedly, the petitioner was neither party to the suit nor
purchaser or representative of the parties to the decree. Therefore, it
cannot be said that he is entitled to file the application under Section 47
of the CPC. Explanations I and II of said section clarify that the parties to
the suit were purchasers of the property at a sale in execution of a decree
and shall be deemed to be party to the suit. Undisputedly, in the case at
hand, the petitioner is not claiming himself as a party to the suit or legal
representative of the parties or purchaser of the property from the decree-
holder. Thus, the petitioner has failed to demonstrate that he is entitled to
file the application under Section 47 of the CPC.
16. Perused the judgment in the case of Shreenath (supra), wherein the
facts were that the plaintiff filed the suit for redemption of the mortgage
against the defendant, which was decreed. During execution proceedings,
the objector moved an application contending that since 1952, he was a
tenant in the suit property, and without making him a party to the suit,
the order was passed. Therefore, the Hon'ble Apex Court held that " the
right of a tenant or any person claiming right on his own of the property
in case he resists his objection under Order XXI Rule 97 of the CPC has to
be decided by the executing Court itself."
Similarly, in the case of Asgar (supra), the facts were that in 1897,
the disputed property was leasehold, and by efflux of time, the lease
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expired in 1972, but still, the lessee was in possession of the suit property.
In the said matter, the plaintiff therein filed the suit for partition and
separate possession of the property which came to be decreed and during
the execution proceedings, the objector, i.e. the lessee, has raised the
objection and, therefore, the Hon'ble Apex Court held that " the said
objection has to be determined under Order XXI Rule 97 of the CPC ".
17. In the case at hand, the plaintiff is not claiming that he was a party
to the suit or the legal representative of the original defendant/tenant.
However, he admitted that initially, the suit property was given to the
defendant, Devidas Sheshrao Umale. He closed his business and handed
over the possession of the suit property to the defendant. Subsequently,
the decree-holder/respondent handed over the possession of the suit
property and accepted the rent from him but did not issue any rent receipt
in that regard. By the said pleading, the petitioner tried to claim himself
as a tenant in the suit property. However, along with the application, the
plaintiff failed to produce a single document on record supporting his
claim. He has not produced any document on record showing that the
original tenant surrendered his tenancy rights in favour of the
landlord/respondent or that the respondent inducted him into the suit
property as a tenant. To claim tenancy rights, he can file separate
proceedings.
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18. It is a settled position of law that the tenancy can be terminated by
(i) the tenant surrendering the tenancy rights and (ii) determining the
tenancy by the competent court of law. In the case at hand, the petitioner
failed to demonstrate that the tenancy of the original tenant, Devidas
Sheshrao Umale, was terminated by the above two modes prior to the
passing of the decree nor produce any documents to indicate that he was
inducted as a tenant and, therefore, does not find any substance in his
contention that the respondent inducted him as a tenant in the suit
property in the absence of any document in that regard. Thus, it is evident
that the petitioner failed to show that he was a party to the suit or he was
a legal representative of the parties to the suit, or the respondent inducted
him as a tenant in the suit property and, therefore, it seems that the facts
at the case in hand are different than the afore-cited judgments and the
learned trial Court has rightly considered the same and held that the law
laid down in the said authorities do not apply to the case at hand but the
observations made in Diksha Hinduja are applicable. Thus, the petitioner
failed to show that he is entitled to object to the execution decree under
Section 47 of the CPC. Therefore, in my opinion, the findings recorded by
the trial Court are just, legal, and proper, and no interference is required
in the writ jurisdiction.
19. Besides, the petitioner, by filing the application (Exhibit No.42),
had claimed to quash and set aside the ex parte decree passed on
01-01-2013 in Regular Civil Suit No.74/2012, which cannot be termed as
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an objection to the execution of the decree. Moreover, as per Order XXI
Rules 97 to 101 of the CPC, whether any decree is resisted or obstructed
by any person in obtaining the possession of the suit property, in such
circumstances, the decree-holder or the purchaser of such property sold in
execution of the decree, can take recourse to remove such obstruction and
in that eventuality, the court is required to adjudicate the said application.
In the case at hand, the decree-holder has not filed any application
complaining about the objector's resistance to the execution proceedings.
However, the petitioner claims that he was inducted as a tenant in the Suit
property. Therefore, I do not find substance in the contention of the
learned Counsel for the petitioner that the trial Court has erred in passing
the impugned order. On the contrary, it seems that, after considering the
rival contentions of the parties and discussing the same in detail, it passes
the well-reasoned order. Consequently, the impugned order is just and
proper and no interference is required in writ jurisdiction.
20. In the aforesaid backdrop, I do not find any substance in the
contentions of the petitioner in that regard, and the petition, being bereft
of any merit, is dismissed. No order as to costs. As a sequel, interim relief
granted on 30-07-2019 is hereby vacated.
Inform the trial Court accordingly.
(ABHAY J. MANTRI, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 13/01/2025 14:37:13
