The Bombay High Court rejected the present writ petition and denied the prayer to reopen the closed execution proceedings as Petitioners never bothered to prosecute their objections for 14 long years.
A single-judge bench comprising Hon’ble Justice Sandeep V. Marne came to the view that in execution proceedings, prayers for partition and separate possession cannot be granted, and a separate suit has to be filed for seeking them.
Brief Facts:
In this petition, the Petitioners challenged an order dated 11 September 2019 passed by Civil Judge Senior Division, Pune, in Regular Darkhast No.781 of 2012. By that order, the Executing Court recorded that nothing in the decree remains to be executed on account of execution of the sale deed by Decree-Holder and Judgment-Debtor in favour of third party. The decree was held satisfied, and the execution proceedings were closed. Though the Petitioners were not parties to the suit, they came to be added as Judgment Debtors to the execution proceedings. Petitioners filed their objections to the execution on 8 March 2005 and 28 April 2005. The main contention of the Petitioner was that without deciding their objections, the executing Court had proceeded to close the execution proceedings by recording the satisfaction of the decree.
Contentions of the Petitioner:
The learned Counsel for the Petitioner had drawn the attention of this Court to the Objection Applications filed by Petitioner Nos.1 and 2. He contended that since the share of Petitioner No.1 and 2 in the suit property was admitted in the Development Agreement executed in favour of the second assignee, the executing Court ought to have decided the Objection Application filed by Petitioner Nos.1 and 2 rather than recording satisfaction of the decree. He would, therefore, press prayer clause (b) of the petition for restoration of execution proceedings for adjudication of Objections filed by the Petitioners.
Contentions of the Respondent:
The learned Counsel for the Respondents contended that Petitioner Nos.1 and 2 did not pursue their objections filed in the year 2005 for 14 long years till the impugned order was passed on 11 September 2019. He relied on judgment of this Court in Shakuntala Shamsingh Mali vs. Housing Development Finance Corporation Ltd. (2014) 2 Mh.L.J. 974 in support of his contention that no relief can be granted in the light of negligent conduct on the part of Petitioners. He further submitted that the Petitioners would otherwise not be remediless as they can always file their own suit seeking a declaration of their share in the suit property if any.
Observations of the Court:
It appeared to this Court that after lodging the objections, the Petitioners did not pursue their objections before the executing Court. In the meantime, several developments occurred when the decree was assigned twice. Ultimately a sale deed of the suit property came to be executed in favor of the third assignee, and the entire dispute was amicably resolved.
Further, it was observed by the Court that two years after the satisfaction of the decree was recorded by the executing Court, Petitioners seems to have smelled an opportunity of re-opening the execution proceedings citing the pretext of non-decision of their objection, which they did not bother to prosecute for 14 long years. The Court denied reopening the closed execution proceedings for indolent Petitioners, that too for a decision of their objections which can be decided only in a suit.
After perusal of the prayers raised in the objection petitions, this Court noted that the same are in the nature of prayers which would be sought in a fresh suit. In execution proceedings, such prayers for partition and separate possession could not otherwise have been granted. The Petitioners can always seek such prayers by filing a separate suit. In the present case, Petitioners were not parties to the suit; therefore, they need to file a separate suit to seek partition and share.
The decision of the Court:
The Bombay High Court dismissed the writ petition as no error was found being committed by the executing court in passing the order dated 11 September 2019.
Case Title: Hirabai Dattatray Mankar v. Dodke Associates through its Partner
Coram: Hon’ble Justice Sandeep V. Marne
Case no.: WRIT PETITION NO.4504 OF 2022
Advocate for the Petitioner: Mr. Ashish A. Gatagat
Advocate for the Respondent: Mr. Sanjay Kshirsagar
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