Bombay High Court
Prakash Vitthal Kale Deceased Thr Lrs ... vs Maharashtra Pulse Mills Jalgaon ... on 27 June, 2025
2025:BHC-AUG:17347
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7127 OF 2025
Prakash Vitthal Kale
Deceased through his Legal Representatives
1. Smt. Ashalata Prakash Kale
Age :- 73 years, Occu. Agriculturist,
R/o. 244, Bhawani Peth, Jalgaon,
Taluka and Dist,. Jalgaon.
2. Rajnikant Prakash Kale
Age :- 57 years, Occu. Agriculturist,
R/o. 244, Bhawani Peth, Jalgaon,
Taluka and Dist,. Jalgaon.
3. Sangita Ganesh Phirke
Age :- 54 years, Occu. Business,
R/o. 13, Nityanand Nagar,
Mohadi Road, Jalgaon,
Taluka and Dist,. Jalgaon.
4. Chandrashekhar Prakash Kale
Age :- 52 years, Occu. Agriculturist,
R/o. 244, Bhawani Peth, Jalgaon,
Taluka and Dist,. Jalgaon.
5. Yuvraj Prakash Kale
Age :- 49 years, Occu. Agriculturist,
R/o. 244, Bhawani Peth, Jalgaon,
Taluka and Dist,. Jalgaon. ..Petitioner
(Orig.Defendant/Judgment
Debtor)
Versus
1. Maharashtra Pulse Mills, Jalgaon
A Registered Partnership Firm
Through its Partner
Ashwin Hansraj Shah
Age :- 65 years, Occu. Business
R/o. 68-A, Kalash, Shivram Nagar,
M.J. College Road, Jalgaon,
Taluka and Dist. Jalgaon.
[ Note :- Respondent No. 1 is adequately represented through only
one partner, hence other partners are not made party
herein]
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2. Sunil Vitthal Patil
Age : 56 years, Occu. Business
R/o. 18, Vidyut Colony, Jalgaon,
Taluka and Dist,. Jalgaon.
3. Sultan Babmiya Patel
Age : 58 years, Occu. Business
R/o. 49, Aqusa Nagar, Mehrun,
Jalgaon, Taluka and Dist,. Jalgaon.
4. Shaligram Raghunath Kale
Age : 51 years, Occu. Business
R/o. At Post- Asoda, Jalgaon
Taluka and Dist,. Jalgaon.
5. Ramesh Ramdas Narkhede
Age : 73 years, Occu. Business
R/o. 4, Yashwant Colony, Ring Road,
Jalgaon, Taluka and Dist. Jalgaon. ..Respondents
(No. 1 Orig. Plaintiff/Decree
Holder, Nos. 2 to 5-Subsequent
Purcharers)
...
Mr. Girish S. Rane, Advocate for Petitioners.
Mr. V. B. Patil, Advocate for Respondent No1.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 27th JUNE, 2025.
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. With consent of the
parties, matter is taken up for final hearing at admission stage.
2. The present Writ Petition takes exception to order dated
18.02.2025 passed below Exhibits-243 and 248 in Regular
Darkhast No.152/2012 pending before 5th Joint Civil Judge, Junior
Division, Jalgaon.
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3. The petition comes with chequered history. Suffice to state
that decree dated 30.07.1977 for specific performance of contract,
which was confirmed by this Court vide judgment and order dated
23.06.1982, has been put to execution in Special Darkhast No.
2/1978. However, till this date could not be culminated in final
decree. This litigation is classic example as to how litigant can
drag execution of decree from stage of preliminary decree to final
decree in suit for specific performance of contract.
4. Brief facts giving rise to present Writ Petition are as under:
The respondent no.1 instituted Special Civil Suit No.4/1975
seeking decree of specific performance of contract. On 30.07.1977,
Civil Judge Junior Division, Jalgaon decreed suit. The decree was
put to execution in Special Darkhast No.2/1978 (later numbered as
Regular Darkhast No.152/2012). As per stipulations in decree, it
was necessary to seek N.A. permission. However, N.A. permission
was rejected by Collector giving reasons that suit property is
earmarked for service industry. The Pulse industry for which N.A.
permission is sought does not fit in service industry. Eventually,
petitioner/JD filed application at Exhibit-37 to dispose execution
proceeding as decree become non-executable. The Trial Court
dismissed application and allowed respondent no.1 to seek N.A.
permission for residential purpose. The said order was
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unsuccessfully challenged in CRA No.685/1985 before this Court
and then in Special Leave to Appeal No.13559/1986 before
Supreme Court of India. Ultimately in year 1986, Court
Commissioner was appointed for obtaining N.A. permission for
residential purpose. On 18.06.1991 Collector granted N.A.
permission. Even litigation against such order was unsuccessfully
dragged before Appellate and Revisional Authorities under
Maharashtra Land Revenue Code and finally set at rest by this
Court. Thereafter, in the year 1994 due to change in composition of
partnership of DH firm, execution proceeding was dismissed
observing that respondent no.1 has no locus standi to continue.
However, said order was set aside by this Court and execution
proceeding was restored vide order dated 19.06.2003 passed in
CRA No.389/1994.
On 13.01.2014, decree holder filed application below Exhibit-
179 seeking permission to deposit amount of Rs.42,000/- in the
Court towards balance consideration amount as per decree as N.A.
permission was granted and there was no impediment in execution
of sale deed. The said application was allowed. However,
petitioner carried this order upto Supreme Court and finally vide
order dated 19.07.2021 passed in Special Leave to Appeal
No.5465/2021 Hon'ble Supreme Court directed respondent-decree
holder to deposit amount of Rs.1 crore and give quietus to the
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litigation. Accordingly, respondent-decree holder deposited amount
of Rs.1 crore.
On 05.07.2024, respondent-decree holder filed an application
below Exhibit-243 seeking appointment of Court Commissioner for
making compliance of requirements of Municipal Corporation for
obtaining revised N.A. permission for residential purpose.
Similarly, filed one more application below Exhibit-248 seeking
direction to Court Commissioner to execute sale deed and hand
over possession free from all encumbrances, so also fix
remuneration of Commissioner. The petitioner / JD opposed both
applications by filing reply. The learned Executing Court allowed
both applications filed below Exhibits-243 and 248 vide impugned
order dated 18.02.2025 and directed appointment of Shri. S. Y.
Joshi as Court Commissioner for the purpose of taking necessary
steps for obtaining N.A. permission for residential use and getting
measurement carried from Competent Authority for fixation of
boundaries so also deliver possession in favour of decree holder free
from all encumbrances.
5. Mr. Rane, learned Advocate appearing for petitioners, after
taking this Court through history of litigation, invites attention to
clauses of agreement to sale dated 17.01.1972 and endeavours to
contend that sell of suit property (Agriculture land) was intended
for raising Dal Mill, with further stipulation that in case
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permission for non-agricultural use is refused, on refund of earnest
money of Rs.11,000/-, agreement would be treated as canceled. He
would urge that Executing Court, while executing decree, cannot
transgress beyond intention of parties as discernible from contents
of agreement. According to him, direction to Court Commissioner
to take necessary steps for obtaining N.A. permission for
residential use or further direction for carrying measurement,
fixation of boundaries and delivery of possession free from all
encumbrances is beyond scope of decree. Mr. Rane submits that in
light of Rules 6 and 7 of Order XX of Code of Civil Procedure,
decree shall agree with the judgment and operative order shall be
in consonance with reasoning and conclusion arrived at by Court
while answering issues framed. According to him, once N.A.
permission for Pulse Mill was refused, contract stood rescinded in
light of terms of agreement and different interpretation cannot be
adopted by Executing Court, thereby incorporating terms, which
were never agreed between parties. According to Mr. Rane,
impugned orders cannot be countenanced for the reasons that
Executing Court traveled beyond decree without appreciating
essence of operative order. According to Mr. Rane, aforesaid issues
were left open for consideration of Executing Court by this Court
while disposing CRA No.389/1994 vide order dated 19.06.2003. In
this background, he placed his reliance on observations of Supreme
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Court of India in case of Topanmal Chhotamal Vs. Kundomal
Gangaram1, which reads thus:
"It is a well-settled principle that a Court executing a decree
cannot go behind the decree: it must take the decree as it
stands, for the decree is binding and conclusive between the
parties to the suit."
6. Mr. Rane further relies upon observations of Supreme Court
in case of Meenakshi Saxena and Anr. Vs. ECGC Limited 2,
which reads as under:
"The whole purpose of execution proceeding is to enforce the
verdict of the court. Executing court while executing the
decree is only concerned with the execution part of it but
nothing else. The court has to take the judgment in its face
value. It is settled law that executing court cannot go
beyond the decree. But the difficulty arises when there is
ambiguity in the decree with regard to the material aspects.
Then it becomes the bounden duty of the court to interpret
the decree in the process of giving a true effect to the decree.
At that juncture the executing court has to be very cautious
in supplementing its interpretation and conscious of the fact
that it cannot draw a new decree. The executing court shall
strike a fine balance between the two while exercising this
jurisdiction in the process of giving effect to the decree."
7. Mr. Rane would, therefore, submit that impugned orders are
in the nature of supplementing or re-writing decree.
8. Per contra, Mr. Vijay Patil, learned Advocate appearing for
respondent no.1 relying upon affidavit-in-reply submits that
Commissioner appointed under impugned order has almost done
his job. The measurement report dated 13.05.2025 is submitted by
Land Record Office. Even learned Tahsildar, vide order dated
1 AIR 1960 SC 388.
2 AIR 2018 SC 2831.
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09.06.2025, granted Sanad. According to Mr Patil, execution of
decree has reached last stage after facing turbulences of litigation
for almost 47 years. According to Mr. Patil, present petition is filed
after four months after impugned order hence suffers from delay
and laches. Any interference at this stage would frustrate ends of
justice. He would, therefore, urge to dismiss petition with
exemplary costs.
9. Having considered submissions advanced by learned
Advocates appearing for respective parties and on perusal of record
tendered before this court, it can be observed that on 30.07.1977
respondents suit has been decreed for specific performance of
contract in following terms:
"It is hereby ordered that the defendant Prakash Vitthald
Kale do obtain N.A. Permission from the concerned
authority within a period of two months and execute the sale
deed of the suit land in the favour of the Plaintiff on the
receipt of Rs.42,000/- from the plaintiff. If the defendant
failed to do so, such N.A. permission will be obtained
through court and the sale deed executed on behalf of the
defendant through court in the favour of the plaintiff on his
depositing Rs.42,000/- in the court. On the execution of the
sale deed the plaintiff shall be entitled to possession of the
suit land. The expense for getting N.A. permission and
registration of the sale deed are to be borned by plaintiff.
The costs of this suit shall be borned by the defendant with
his own. Decree be drawn up accordingly."
10. In pursuance to execution of aforesaid decree, an application
was moved for N.A. permission, which was rejected by Collector,
Jalgaon giving reason that suit land is reserved for service industry
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and intended use for Pulse Mill is not in that class. This lead DH
to file an application Under Sections 47 and 144 of Code of Civil
Procedure vide Exhibit-37 in Special Darkhast No.2/1978. Learned
Trial judge rejected said application observing that there is no
prohibition in decree to use suit land, except for Dal Mill, therefore,
it can be used even for residential, commercial or other non-
agricultural purposes. It is further observed that judgment debtor
has no right to obstruct execution of decree only because N.A.
permission for Dal Mill was refused and plaintiff was held entitle
to move Competent Authority for NA permission for residential or
other purposes. The said order though assailed, is confirmed by
this Court in CRA No.648/1985 vide order dated 05.08.1986
observing thus
"It is not possible to accept this contentions. The decretal
command is clear and categorical. It does not restrict the
use of the suit land for dal mill purpose. It grants specific
performance subject to once conditions viz. Collector's
permission for non-agricultural use, without restricting
that use only for dal mill purpose."
11. Similarly, when petitioner had assailed N.A. permission for
residential use and carried litigation upto this Court in Writ
Petition No.627/1994, this Court made following observations in
paragraph no.9 of order, which reads thus:
"The present petitioner entered into agreement for purpose of
suit land in the year 1972. There is order passed in his
favour in the year 1977, whereby, respondent No.1 has been
directed to execute Sale deed after obtaining N.A.
permission, and if he falls, then this is to be done by the
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court, through commissioner. The objections taken up
Respondent No.1 Prakash before the executing Court were
strange and were absolutely unacceptable that the land
could have been used only for the purpose of Dal Mill and
for no other purpose."
12. Although Mr. Rane seeks to rely on observations recorded by
this Court in CRA No.389/1994, particularly in paragraph no.8 of
order dated 19.06.2003, to contend that issue as to validity of N.A.
permission for residential purpose as against condition of
agreement to use suit land for Dal Mill was kept open, on careful
reading of order, it can be observed that mere submission of
learned Advocates on this issue have been recorded and parties
were left open to agitate before Executing Court, if such issue is
already considered and decided or it is open to be raised by
judgment debtor during further progress of the execution
proceeding. However, as indicated in aforesaid paragraphs, it is
clear that such an issue was already set at rest by previous order
passed by this Court in Writ Petition No.627/1994.
13. Now turning back to the impugned order, it can be observed
that Executing Court has appointed Court Commissioner to comply
requirements of Corporation towards non-agricultural use of land,
execute sale deed after fixing boundaries and hand over possession
free from all encumbrances to DH. Although Mr. Rane submits
that directions of Executing Court transgressed beyond decree such
submissions cannot be countenanced as decree under execution is
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for specific performance of contract in respect of open agricultural
land. The defendant was put under obligation to hand over
possession of suit land for non-agricultural use. At this stage,
reference can be given to Rule 35(3) of Order XXI which reads as
under :-
"35 (3). Where Possession of any building or enclosure is to
be delivered and the person in possession, being bound by
the decree, does not afford free access, the Court, through
its officers, may, after giving reasonable warning and
facility to any woman not appearing in public according to
the customs of the country to withdraw, remove or open
any lock or bolt or break open any door or do any other act
necessary for putting the decree-holder in possession."
It is nobody's case that suit land was having construction or
encumbrances at the time of passing decree. However, if defendant
has raised any construction after passing of decree or created
encumbrances, it is not beyond jurisdiction of Executing Court to
issue direction to remove such obstacle and ensure delivery of
possession free from all encumbrances.
14. Supreme Court of India adopted broader interpretation of
Rule in case of B. Gangadhar Vs. B. G. Rajalingam 3, wherein in
paragraph nos.6 and 7 following observations are made:-
"6. Rule 35(3) of Order 21 itself manifests that when a
decree for possession of immovable property was granted
and delivery of possession was directed to be done, the
Court executing the decree is entitled to pass such
incidental, ancillary or necessary orders for effective
enforcement of the decree for possession. That power also
includes the power to remove any obstruction or
3 AIR 1996 SC 780.
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superstructure made pendente lite. The exercise of
incidental, ancillary or inherent power is consequential to
deliver possession of the property in execution of the decree.
No doubt, the decree does not contain a mandatory
injunction for demolition. But when the decree for
possession had become final and the judgment debtor or a
person interested or claiming right through the judgment-
debtor has taken law in his hands and made any
construction of the property pending suit, the decree-holder
is not bound by any such construction. The relief of
mandatory injunction, therefore, is consequential to or
necessary for effectuation of the decree for possession. It is
not necessary to file a separate suit when the construction
was made pending suit without permission of the court.
Otherwise, the decree becomes in-executable driving the
plaintiff again for another round of litigation which the
Code expressly prohibits such multiplicity of proceedings.
7. It is also not necessary that the tenant should be
made party to the suit when the construction was made
pending suit and the tenants were inducted into possession
without leave of the Court. It is settled law that a tenant
who claims title, right or interest in the property through
the judgment debtor or under the colour of interest through
him, he is bound by the decree and that, therefore,the
tenant need not econominee be impleaded as a party
defendant to the suit nor it be an impediment to remove
obstruction put up by them to deliver possession to the
decree. What is relevant is only a warning by the bailiff to
deliver peaceful possession and if they cause obstruction,
the bailiff is entitled to remove the obstruction; cause the
construction demolished and deliver vacant possession to
the decree holder in terms of the decree. Thus considered,
we hold that the High Court and the executing Court have
not committed any error of law in directing demolition of
shops and delivery of the possession to the decree-holder."
15. In that view of the matter, impugned order appears to be
passed within parameters of jurisdiction of Executing Court. In
fact it was obligation of Executing court to see that plaintiff/Decree
Holder get fruits of decree and exercise all incidental and ancillary
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inherent power to give effect to decree. Hence, Writ Petition sans
merit and stands dismissed.
16. Rule stands discharged.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/June-2025
