[Cites 5, Cited by 0]
Bombay High Court
M/S. Mohini Resorts Pvt. Ltd. vs Shankar Godaji Gore And Anr. on 5 January, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:14
5.WP.3778.2018.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3778 OF 2018
M/s. Mohini Resorts Pvt. Ltd. .. Petitioner
Versus
Shankar Godaji Gore and Anr. .. Respondents
....................
Mr. Ranjit Thorat, Senior Advocate a/w. Mr. Rohan P. Surve,
Advocate for Petitioner.
Mr. Pramod N. Patil a/w. Mr. Shyam Solanke, Ms. Mamta Pandey
and Mr. Atharva Deshmukh, Advocates for Respondent No.2.
...................
CORAM : MILIND N. JADHAV, J.
DATE : JANUARY 05, 2026
JUDGEMENT:
1. Heard Mr. Thorat, learned Senior Advocate for Petitioner
and Mr. Patil, learned Advocate for Respondent No.2. None for
Respondent No.1. Respondent No.2 is the main contesting
Respondent.
2. From the year 2017, Petition is pending for admission. It is
heard today finally at the stage of admission by consent of the parties.
3. This Writ Petition assails the judgment and order dated
07.06.2017 passed by learned Judge, Small Causes Court, Pune in
Application filed below Exhibit-295 in Darkhast No.1032 of 1980.
Copy of the order dated 07.06.2017 is appended at Exhibit-L, page
No.129 to the Petition.
1 of 18
5.WP.3778.2018.doc
4. Petitioner is admittedly the Decree Holder and Respondent
No.1 is the original Judgement Debtor. Petitioner has filed Darkhast
No.1032 of 1980 seeking execution of the decrees dated 05.11.1968
and 21.11.1968.
5. Respondent No.2 is a third-party Applicant who has filed
Application below Exhibit-295 in the pending Darkhast proceeding
seeking her impleadment. The name of Respondent No.2 is Shyama
Shirish Nagarkar alias Asha Patankar. Application is filed through her
Power of Attorney holder M/s. Rajkripa Consultancy, a partnership
firm.
6. Briefly stated the nexus of Respondent No.2 with the Decree
that has been passed and is being executed by Petitioner as is under:-
6.1. Originally one Trimbak Hari Awate was the owner of land
and premises standing thereon forming part of Final Plot of 606
situated in Shivaji Nagar, Bhamburda, Pune in Town Planning Scheme
No.1 (hereinafter referred to as the said property). He had mortgaged
the said property by registered mortgaged deed dated 24.03.1947 to
one Shri Dinkar Balkrishna Vaidya. Respondent No.2 is the grand
daughter of Dinkar Balkrishna Vaidya. However immediately one year
later on 07.07.1948, Mr. Awate leased a part of the said property to
Mr. Shankar Godaji Gore (Respondent No.1) for a term of 25 years by
lease deed dated 07.07.1948.
2 of 18
5.WP.3778.2018.doc
6.2. It is seen that on 13.07.1948, son of Trimbak Hari Awate
namely Mr. Shankar Trimbak Awate leased the balance portion of the
said property to Mr. Shankar Godaji Gore for a term of 99 years but
the said lease deed was registered only on 14.07.1979 i.e. 31 years
later. It is seen that some portion of the said property was sub-letted
by Mr. Shankar Godaji Gore to Smt. Sulochana Thakur and Smt. Sarde
(sub-tenants) who constructed structures thereon and further sub-let
the same to Mr. Sardar Biwalkar by deed of lease dated 07.11.1949.
6.3. It is seen that the original lessee Mr. Shankar Godaji Gore
thereafter sub-let to Mr. Sardar Biwalkar, the same portion by way of
further lease deed dated 27.12.1948 which was in turn sub-let to Smt.
Sulochana Thakur and Smt. Sarde further. The original owner
Trimbak Hari Awate expired on 16.07.1949 leaving behind his Will.
6.4. In the above background and factual scenario, the mortgagee
filed Special Civil Suit No.89 of 1952 in the Court of Civil Judge,
Senior Division, Pune against the Executor of the last Will and
Testament of Trimbak Hari Awate for recovery of the amount due to
him under the Mortgage Deed dated 24.03.1947. The tenants Shankar
Godaji Gore and sub-tenants Mr. Biwalkar, Smt. Thakur and Smt.
Sarde were also impleaded as parties to the suit.
6.5. It is seen that preliminary decree was passed in the said Suit
on 31.01.1953 in favour of Dinkar Balkrishna Vaidya. However, Mr.
3 of 18
5.WP.3778.2018.doc
Dinkar Balkrishna Vaidya was declared lunatic under the Lunacy Act in
Miscellaneous Application No.363 of 1953 and the Nazir of the District
Court was appointed as his Guardian. The Nazir of the District Court,
Pune as the Guardian of Mr. Dinkar Balkrishna Vaidya obtained a final
decree on 26.06.1955 and seeking execution of the said final decree
filed Special Darkhast No.291 of 1965 wherein the Executing Court
auctioned the said property which was held as mortgaged property. In
the said auction, the Nazir of the District Court, Pune on behalf of the
Decree Holder as his Guardian gave the highest bid and purchased the
said property; the sale was duly confirmed by the District Court and
Sale certificate dated 19.12.1957 was issued in the name of Nazir of
the District Court, Pune for and on behalf of Dinkar Balkrishna Vaidya.
Possession of the said property was taken over by the Nazir of the
District Court, Pune through the Court.
6.6. However since the said property was occupied by tenants
and sub-tenants namely Shankar Godaji Gore, Smt. Thakur and Smt.
Sarde, the Nazir of the District Court, Pune for and on behalf of Dinkar
Balkrishna Vaidya filed two Suits against the tenants and the sub-
tenants in the Court of Small Causes, Pune for possession and recovery
of rent being Civil Suit Nos.1139 of 1965 and 1142 of 1965. Both the
Suits were decreed by the Court of Small Causes, Pune for possession
and arrears of rent on 05.11.1968 and 27.11.1968 respectively. The
tenants / sub-tenants filed separate Appeals in the Court of District
4 of 18
5.WP.3778.2018.doc
Judge, Pune. The Appeal filed by Mr. Sardar Biwalkar was allowed to
be withdrawn unconditionally. However, the Appeal filed by the sub-
tenants Smt. Thakur and Smt. Sarde was allowed on 31.07.1972 and
the decree passed in Special Civil Suit No.1142 of 1965 by the Small
Causes Court was set aside. The order of Appeal Court was challenged
in this Court by the Nazir of the District Court, Pune on behalf of
Dinkar Balkrishna Vaidya by filing Civil Application No.242 of 1973.
6.7. On 11.09.1973, Dinkar Balkrishna Vaidya expired and his
legal heirs and representatives were brought on record. The Special
Civil Application filed by the Nazir of the District Court, Pune on behalf
of Dinkar Balkrishna Vaidya and later on prosecuted by his legal heirs
and representatives was allowed by this Court on 15.07.1980 and the
judgement and decree of Civil Court in Appeal was set aside while
confirming and upholding the decree of possession passed by the Small
Causes Court.
6.8. Record shows that Dinkar Balkrishna Vaidya's wife had
predeceased him and he was survived by two sons namely Narayan
and Vasudeo and two daughters namely Shashikala Patankar and
Sushama Bapat. Record further shows that Narayan the eldest son of
Mr. Dinkar Balkrishan Vaidya was missing since 09.02.1973 and under
the law was deemed to have died after seven years. One of the
daughter namely Shashikala Patankar expired on 25.12.1973 leaving
5 of 18
5.WP.3778.2018.doc
behind two daughters namely Asha Patankar and Veena Patankar and
son Amar. Respondent No.2 in the present Writ Petition is Asha
Patankar, daughter of Shashikala. Record further shows that Sushama
Bapat the other daughter of Dinkar Balkrishna Vaidya was entitled to
1/12th undivided share in the entire estate owned and belonging to late
Dinkar Balkrishna Vaidya of which she has already taken the
possession as per arrangement agreed before the District Court.
6.9. In the above background, three children of Shashikala
Patankar who were grandchildren of Dinkar Balkrishna Vaidya entitled
to 1/12th undivided share in the estate of late Dinkar Balkrishna Vaidya
remained. At this time Vasudeo made Application to the District Court,
Pune to deliver possession of the estate to him. Learned District Court
informed Vasudeo that all legal heirs should jointly submit Application
determining their shares in the estate.
6.10. Accordingly Vasudeo (son), Ms. Sushama Bapat (daughter)
and children of Shashikala Patanakar namely Asha, Veena and Amar
through their Guardian Sadashiv Patankar (her husband) submitted
Application determining their respective shares in the estate of late
Dinkar Balkrishna Vaidya to the District Court. In the said Application
which was filed, daughter Sushama Bapat sought relief that all
movables / ornaments in the custody of the Nazir of the District Court,
Pune be delivered to her in lieu of her share in the entire estate; on
6 of 18
5.WP.3778.2018.doc
behalf of Shashikala Patankar namely Asha, Veena and Amar through
their father and natural Guardian namely Sadashiv Patankar (husband
of Shashikala) prayed for certain immovable properties as and by way
of their share in the estate of the grandfather. Vasudeo's application
was for the balance immovable properties. After considering the
Application filed Vasudeo Sushama and children of Shashikala, the
learned District Court passed an appropriate order allowing the joint
Application and granting the estate to Sushama Bapat, legal heirs of
Sashikala Patnakar and Vasudeo. It is seen that Vasudeo expired on
01.04.1981 before possession of the balance estate was delivered to
him. Since Sushama Bapat was the only legal heir and representative
of late Dinkar Balkrishna Vaidya. Record shows that pursuant to the
Agreement arrived at between the parties earlier the Nazir of the
District Court, Pune acted upon the order and delivered the shares in
the properties to the three branches. It is further seen that three years
prior to the demise of Vasudeo, Vasudeo by Visar Pavati dated
12.07.1978 had agreed to sell some part and portion of the said estate
which was in his possession and which was allotted to him as his share
for a price of Rs.1,00,000/- and pursuant to the same executed
Agreement for Sale dated 09.03.1981 just prior to his demise.
6.11. It is seen that said Vasudeo Dinkar Vaidya died intestate on
01.04.1981 leaving behind him his sister Sushama Bapat as his only
legal heir. Petitioner represented by Mr. Kanhaiyalal Motilal Talera,
7 of 18
5.WP.3778.2018.doc
the purchaser of the said premises reminded Sushama Bapat about the
Agreement for Sale and called upon her to apply for necessary
permission for transfer the Suit premises and execute the conveyance
of the said premises to him. However Sushama Bapat did not take any
steps forcing Mr. Kanhaiyalal Motilal Talera to file a suit for specific
performance of the Agreement for Sale dated 09.03.1981 in the Court
of Civil Judge, Pune against Smt. Sushama Bapat (Daughter of Dinkar
Balkrishna Vaidya) and the Nazir of the District Court, Pune (Manager
of the estate of Dinkar Balkrishna Vaidya).
6.12. Record shows that the said Civil Suit No.487 of 1981 was
compromised and Defendant No.1 in the said Suit namely Sushama
Bapat entered into a registered sale deed with M/s. Mohini Resorts
Private Limited (Petitioner herein been the nominee of Shri
Kanhaiyalal Motilal Talera) and Sale Deed was executed between the
parties with Mr. Kanhaiyalal Motilal Talera being the consenting party.
By virtue of the Sale Deed, right to file execution proceedings and
continuing the execution proceedings against the sub-tenants of the
said property with respect to enforcing the decree passed by the Small
Causes Court in Suit Nos.1139 of 1965 and 1142 of 1965 which was
upheld by this Court was given to the Petitioner. Copy of the Sale
Deed dated 07.02.1991 is appended at Exhibit-A to the Petition.
8 of 18
5.WP.3778.2018.doc
6.13. In the Application which is filed by Respondent No.2 before
Executing Court it is alleged that when Special Civil Suit No.487 of
1981 was compromised by Respondent No.2's aunt Sushama Bapat
and Nazir of the District Court, Pune at that time, in view of the family
arrangement which was arrived at between Vasudeo Vaidya, Sushama
Bapat and children of Shashikala Patankar (including the Petitioner
herein) through their father and natural Guardian Sadashiv Patankar,
the Nazir of the District Court, Pune made an Application seeking
deletion of the names of Asha Nagarkar, Veena Patankar and Amar
Patankar from the Darkhast proceedings.
6.14. It is stated that this Application filed by Nazir of the District
Court, Pune below Exhibit-22 in Darkhast proceeding was allowed by
the District Court on 15.09.1982 and accordingly the names of the
legal heirs of Shashikala Patankar were deleted. This order is still in
subsistence and not challenged by any party.
6.15. Accordingly in view of the above proceedings, Petitioner
namely M/s. Mohini Resorts Private Limited filed Application below
Exhibit-6 in Darkhast proceeding namely No.1032 of 1980 in the Small
Causes Court seeking appropriate relief and then took steps to execute
the decrees and file further Application below Exhibit-87 wherein
common order in the aforesaid two Applications below Exhibits-6 and
87 directing impleadment of the Decree Holder and issuance of
9 of 18
5.WP.3778.2018.doc
possession warrant under Order XXI Rule 35 of the Code of Civil
Procedure, 1908 (for short 'CPC').
7. Mr. Thorat would submit that the Suit property is still
occupied by several occupants unauthorisedly who repeatedly filed
various proceedings to stall execution and the possession warrant. In
the above background, Respondent No.2 (Asha Patankar) through her
CA being daughter of Shashikala Patankar filed Application below
Exhibit-295 in the aforesaid pending Darkhast proceedings being
prosecuted by the Petitioner. Mr. Thorat would submit that if the
aforesaid timeline and events are seen by the Court, Respondent No.2
has no independent right whatsoever in the suit property of which
execution is sought. He would submit that the strongest ground being
that on behalf of Respondent No.2, her father and natural guardian
Sadashiv Patankar legally and duly represented the interest of the
children of Shashikala Patankar and has accordingly 2 immovable
properties received under the arrangement by virtue of the order
passed by District Court.
7.1. He would submit in so far as the right of the Petitioner is
concerned, it is qua the property which was agreed to be sold by
Vasudeo Vaidya to Kanhaiyalal Motilal Talera and both daughters of
Dinkar Bhaskar Vaidya namely Sushama Bapat and legal heirs of
Shashikala Patankar did not have any right, title and interest therein.
10 of 18
5.WP.3778.2018.doc
He would submit that Petitioner - Asha Nagarkar (alias Asha Patankar)
was a minor at that time and duly represented by her father Sadashiv
Patankar and in the Court settlement which transpired had received
possession of plot admeasuring 5500 sq.ft built up area situated at CTS
No.934 / 935 out of final plot No.318-319 of village Bhamburda
(Shivaji Nagar) alongwith possession of another plot admeasuring 260
sq.mtr. situated at CTS No.74A New Municipal No.103A Shukarwar
Peth, Pune which is specifically mentioned in her own third party
Application filed below Exhibit-295 by Respondent No.2 herself.
Hence, Mr. Thorat would submit that if this is the position, Respondent
No.2 would have no locus standi whatsoever to maintain the
Application below Exhibit-295 and intervene in the property which
came to the share of Vasudeo.
7.2. He would submit that the learned Judge of the Executing
Court has passed the impugned order on the misconceived and
misplaced premise that Asha Patankar is daughter of Shashikala
Patankar and she is one of the legal heir having right in the suit
property of which execution has been sought without adhering to the
aforesaid facts and the order passed by the District Court distributing
the properties tot he 3 branches as per their joint Application. He
would submit that in view of the aforesaid fact, Respondent No.2
would have no legal right whatsoever to contest the execution
proceedings and her impleadment on the grounds returned in the
11 of 18
5.WP.3778.2018.doc
impugned order are completely unwarranted for as she cannot be held
to be a Decree Holder in the Execution proceedings at all. Hence he
would seek setting aside of the impugned order.
8. PER CONTRA, Mr. Patil, learned Advocate appearing on
behalf of Respondent No.2, the main contesting Respondent would
submit that the names of the Respondent No.2 and her brother and
sister were added as decree holder after the death of Dinkar in the said
Execution Proceedings bearing No.1032 of 1980. He would submit
that their names came to be deleted on the Application made by the
Nazir of the Civil Court by order dated 15.09.1982 on the say of the
Nazir that in pursuance of the joint family settlement arrived at
between the parties under Court's order dated 27.05.1982. He would
submit that the said Application was allowed by a one word order
"Allowed" on 15.09.1982 without assigning any reasons and without
issuing notice to the Respondent No.2 and her brother and sister and
without ascertaining as to whether the family settlement has been fully
acted upon by the parties.
8.1. He would submit that that the record of the Court clearly
indicates that the family settlement/partition has not been fully acted
upon and possession of only one property was received by the
Respondent No.2 and her brother and sister from the Nazir. He would
submit that the Executing Court has allowed the application on the
12 of 18
5.WP.3778.2018.doc
basis that it prima facie appears that the family partition/settlement
has not been fully acted upon and partition had not taken place by
metes and bound and the controversy will have to be decided by the
Executing Court.
8.2. He would submit that the fact that the family partition has
not been fully acted upon and the actual partition by metes and
bounds has not been done is admitted by second Respondent's Aunts
Vidya alias Sushama Bapat in paragraph No.3 of the Sale Deed dated
23.10.1986, which is annexed at Page No.26 of the written
submissions of the Petitioner.
8.3. He would submit that that by virtue of provisions of Section
47 and more particularly sub-Section 3 of Section 47 the question as to
whether any person is or is not the representative of a party shall be
determined by the Executing Court. He would submit that similarly,
by virtue of proviso to Order XXI Rule 16 of the CPC the Application
has to be decided by the executing Court after conducting an inquiry.
8.4. He would submit that in the instant case, the Executing
Court has not finally determined as to whether the Respondent No.2
and her brother and sister have any interest in the Decree or whether
they are representative of the original Decree Holder and this question
is clearly kept open by the Executing Court for final adjudication. He
would submit that in these circumstances the interference by this
13 of 18
5.WP.3778.2018.doc
Court against mere impleadment is not warranted.
8.5. He would submit that the Executing Court while conducting
inquiry under Section 47 and Order XXI Rule 16 of the CPC shall
decide the dispute between the persons who claim interest in the
Decree either by virtue of assignment of decree or as a representative
of the original decree holder. He would submit that in such inquiry, the
Executing Court does not go beyond the decree and/or does not decide
any issues between the original parties in the suit in which decree is
passed by the Court.
8.6. In support of his aforesaid submissions, he would refer to
and rely upon the judgement of the Supreme Court in the case of
Gangabai Gopaldas Mohata vs. Fulchand and Others 1 and more
particularly paragraph Nos. 7 to 9 thereof.
8.7. On the basis of the above he would submit that Respondent
No.2 is a proper and necessary party to the execution proceedings.
9. I have heard Mr. Thorat, learned Senior Advocate for
Petitioner and Mr. Patil, learned Advocate for Respondent No.2 and
with their able assistance perused the record of the case. Submissions
made by the learned Advocates have received due consideration of this
Court.
1 (1997) 10 SCC 387.
14 of 18
5.WP.3778.2018.doc
10. On the face of record there are three things which prima
facie come to the fore. Firstly, admittedly in the Application filed by
Respondent No.2 below Exhibit-295 she herself has fairly stated that
she has been recipient of two plots of land under the family
arrangement before the District Court, but it is argued before me that
her branch has received only one property from the Nazir of the
District Court. This will however be a separate cause of action.
Secondly, it is seen that the Decree which has been executed by
Petitioner before the Executing Court is obtained by virtue of
transaction with Vasudeo Vaidya and therefore there is no direct nexus
whatsoever of Shashikala Patankar (mother of Respondent No.2) or
any other branch with respect to the same. Thirdly it is seen that right,
title and interest of Respondent No.2 was duly represented by her
father Sadashiv Patankar before the District Court when the joint
family arrangement was worked out and allowed by order dated
27.05.1982 and the Suit property came to the share of Vasudeo.
11. Therefore in view of the aforesaid three prima facie issues
which are undisputed nexus of the Respondent No.2 with the Suit
property in Execution proceedings and Suit filed by Petitioner is not
established at all. It is prima facie seen that the joint family
arrangement is not disputed by Respondent No.2 as also by the learned
Trial Court. It is seen that right, title and interest of Sushama Bapat
and Shashikala Patankar both daughters of Dinkar Balkrishan Vaidya
15 of 18
5.WP.3778.2018.doc
who were duly represented were determined before the District Court
and in so far as right of the Petitioner is concerned, it flows from the
transactional Agreement with Vasudeo Vaidya only which was decreed.
12. Though it is vaguely submitted that partition by metes and
bounds did not take place, the family arrangement which was agreed
to by the three surviving branches of Dinkar Balkrishna Vaidya have
been duly fructified as per their wishes and Application and
appropriate order has been passed by the learned Trial Court. Once
this is the position, the Executing Court cannot go beyond that decree
which is settled law.
13. The locus standi of Asha Patankar who is the daughter of
Shashikala Patankar to claim right, title and entitlement in the
property which was allotted to the branch of Vasudeo Vaidya is not
established at all. Once segregation of rights has taken place in the
presence of the Court and with mutual consent under the orders of the
Court, it is the will of the parties which prevails and therefore the
submission advanced on behalf of Asha Patankar that partition did not
take place by metes and bounds cannot be accepted by the Court as a
ground for Respondent No.2's intervention in the lis between Petitioner
and legal heirs of Vasudeo.
14. The parties have enjoyed the properties and share in the
estate coming to their share for a long period of time during which the
16 of 18
5.WP.3778.2018.doc
parties namely Respondent No.2 did not take objection whatsoever. It
is seen that judgement and decree which has been passed in favour of
Dinkar Balkrishna Vaidya has been confirmed right upto the Supreme
Court pursuant to which in Execution proceedings, the three branches
namely Vasudeo Vaidya, Sushama Bapat and Shashikala Patankar were
duly represented before the Court and in the said Execution
proceedings, the three branches themselves on their own volition
accepted the properties according to their applications coming to their
respective shares accordingly.
15. In fact this is a case where both the daughters namely
Sushama Bapat and Shashikala Patankar (represented by her husband
and natural Guardian of children) on their own volition and
Application made before the District Court accepted the properties
according to their choice and after receiving and enjoying the said
properties for over a period of more than four decades, now an
Application filed below Exhibit-295 is filed by Asha Patankar to add
her as a Decree Holder in the lis between Petitioner and Vasudeo
cannot be permitted. The right in the subject property which is the
subject matter of Execution belongs to the branch of Vasudeo Vaidya
who is the brother of Shashikala Patankar and therefore Respondent
No.2 has no right, title or interest therein.
17 of 18
5.WP.3778.2018.doc
16. In view of the above observations and findings, the
impugned order dated 07.06.2017 passed by the learned Judge, Small
Causes Court, Pune below Exhibit-295 in Darkhast No.1032 of 1980 is
clearly unsustainable in law. The same is therefore quashed and set
aside.
17. Writ Petition stands allowed in terms of prayer clause (a).
18. No costs.
19. Writ Petition is allowed and disposed.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
20. After this judgment is pronounced in the Court, Mr. Patil,
learned Advocate for Respondent No.2 would persuade the Court to
stay the judgement to test its validity and legality before the Supreme
Court. However, in view of the strong reasons which have been stated
in the aforesaid judgement, the request made by Mr. Patil stands
declined.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
HARSHADA by HARSHADA
HANUMANT
HANUMANT SAWANT
SAWANT Date: 2026.01.05
12:23:28 +0530
18 of 18
