Dismissed

Shobha Fulchand Pande v. Chandulal Deepchand Kale and Ors.

Bombay HC15 Dec 2009WP/6075/2009

Case brief

AI extract

What is this about?

Petitioner challenged the Civil Court's rejection of her application to quash execution of a decree, arguing lack of jurisdiction since the suit should have been in Junior Division under the Bombay Rent Act. Court dismissed petition, noting petitioner delayed raising this objection to protract execution despite being aware of proceedings.

What did the court decide?

Petition dismissed with costs quantified at Rs. 10,000.

Shobha Fulchand Pande Vs Chandulal Deepchand Kale… — Execution and Attachment | Bombay HC (2009)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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WRIT PETITION NO. 6075 OF 2009

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Shobha Fulchand Pande, Age : 57 years, Occupation : Household, R/o. Suyog Sugar Co., Opposite to People's Bank, Kopargaon, Taluka : Kopargaon, District : Ahmednagar.

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.. Petitioner.

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versus

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Chandulal Deepchand Kale, Age : 67 years, Occupation : Business & Agriculture and G.P.A. of respondent nos.2 to 6, r/o. Kopargaon, Tal. Kopargaon, Dist. Ahmednagar.

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Putlabai w/o. Premraj Kale, Age : 77 years, Occupation : Household, r/o. as above.

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Dhanalal Premraj Kale, (deceased) through his legal heirs,

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3a) Kanchanbai Dhanalal Kale, Age : 62 years, Occupation : Household, R/o. as above.

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(2)

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3b) Anil Chanalal Kale, Age : 42 years, Occupation : Business, R/o. as above.

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3c) Atul Dhanalal Kale, Age : 40 years, Occupation : Business, R/o. as above.

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3d) Abhay Dhanalal Kale, Age : 38 years, Occupation : Business, R/o. as above.

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3e) Sanjay Dhanalal Kale, Age : 34 years, Occupation : Business, R/o. as above.

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Vijay Kumar Premraj Kale, Age : 48 years, Occupation : Business, R/o. as above.

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Mosambi Lalchand Lohade, Age : 50 years, Occupation : Business, R/o. as above.

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Kamalabai Devichand Lohade, Age : 41 years, Occupation : Household, R/o. Dr. D.P. Lohade, 797, Bhandarkar Road, Pune.

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(3)

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Mainabai Bhaulal Patani, Age : 82 years, Occupation : Household, R/o. Ward No.5, Ram Mandir Chowk, Main Road, Shrirampur, Dist. Ahmednagar.

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Hukumchand Bhaulal Patani, Age : 67 years, Occupation : Business, R/o. Ramka Niwas, Newasa Road, Ward No.6, Shrirampur, Dist. Ahmednagar.

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Ashok Bhaulal Patani, Age : 64 years, Occupation : Business, R/o. as above.

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Abhay Bhaulal Patani, Age : 62 years, Occupation : Business, R/o. Ward No.5, Ram Mandir Chowk, Main Road, Shrirampur, Dist. Ahmednagar.

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Anil Bhaulal Patani, Age : 59 years, Occupation : Business, R/o. as above.

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Ajit Bhaulal Patani, Age : 55 years, Occupation : Business, R/o. as above.

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.. Respondents.

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(4)

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Mr. S.P. Deshmukh, Advocate, for the petitioner.

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Mr. S.D. Kulkarni, Advocate, for respondent no.1, caveator.

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CORAM : B.R. GAVAI, J.

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DATE : 15TH DECEMBER 2009.

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COURT'S ORDER :

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1. By way of present petition, the petitioner challenges the order dated 21st April 2009, passed by the learned Civil Judge (Senior Division), Shrirampur, below Exhibit 93 in Special Darkhast No. 10/2005, thereby rejecting the application filed by the present petitioner, challenging execution of the decree passed in Special Civil Suit No. 179/1982.

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2. Special Civil Suit No. 179/1982 was filed by the present respondent nos.1 to 6 for possession of the suit property with mesne profit, on the premise that they were owners of the suit property and the respondent nos.7 to 12 were the licensees. The suit was decreed. The First Appeal arising therefrom was also dismissed. The decree holders had filed execution proceedings for execution of the decree. The present petitioner had earlier filed applications below Exhibits 37 and 45, objecting to the execution of the said decree. The said applications were

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(5)

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rejected. The rejection of the said applications came to be challenged before this court. This court vide order dated 8th January 2008, in Writ Petition No. 43 of 2008, by a reasoned order, has rejected the said petition, finding that the applications on behalf of the present petitioner were nothing else but an attempt to protract the execution of the decree passed in favour of the respondents. Again, another objection below Exhibit 93 came to be filed by the present petitioner, raising a ground that the suit was filed before Civil Judge (Senior Division) who had no jurisdiction. It is the contention of the petitioner, that the suit ought to have been filed before Rent Controller, under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short, "Bombay Rent Act"). The said objection is rejected. Hence, the present petition.

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3. Mr. S.P. Deshmukh, learned Counsel appearing for the petitioner, submits that in view of Section 28 of the Bombay Rent Act, it is only the Civil Judge (Junior Division) at Shrirampur, who exercise the power of Rent Controller and, as such, suit ought to have been filed in the said court. He submits that the suit which was filed before Civil Judge (Senior Division), Ahmednagar, was not maintainable. It is, therefore, submitted that the decree, which has been put in execution, is a decree in nullity, passed by the court which had no jurisdiction and, therefore, the same is not executable. He relies on the judgment of Full Bench of this court in the case of Dattatraya Krishna Jangam Vs. Jairam Ganesh Gore (AIR 1965 Bombay 177).

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Mr. S.D. Kulkarni, learned Counsel appearing for respondent

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(6)

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no.1, supports the impugned order.

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5. A party who seeks an equitable jurisdiction, is expected to act in a fair and reasonable manner. From the conduct of the present petitioner, it is clear that the present petitioner is making one attempt after another, so as to protract the decree which is passed in favour of the judgment debtors in the year 1988. The suit came to be filed in the year 1982 which decreed in the year 1988. The First Appeal is decided on 4th March 2005. The Apex Court dismissed the Special Leave Petition on 22nd January 2007. However, the Apex Court had granted six months from the date of order for vacating the suit premises subject to filing usual undertaking. Inspite of all this litigation, the decree holders have not been in a position to get possession of the suit premises.

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6. After the decree was put in execution, the present petitioner filed applications below Exhibits 37 and 45, contending therein that since the present petitioner was not a party to the said suit, the judgment and decree passed in the said suit was not binding on her and for dismissing the execution proceedings filed against her. In the said proceedings, this court has specifically found that the suit was initially filed against deceased Bhaulal and other members of the family. It has been found that on the death of deceased Bhaulal, his wife and four sons applied in the First Appeal to add them as legal representatives of deceased Bhaulal on record. It has been categorically found that the legal representatives of deceased Bhaulal deliberately did not bring the present petitioner as legal representative on record, though it was their duty to bring the petitioner on record as legal representative of deceased Bhaulal. It has further been

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(7)

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found that the present petitioner was, in fact, brought as legal representative of deceased Bhaulal, in the cross objection filed by them before the High Court. It is thus clear that in the appeal which was pending before this court, the present petitioner was very much on record as legal representative of deceased Bhaulal, in the cross objection filed by the decree holders.

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7. In this background, it does not lie in the mouth of the present petitioner, that she was not aware about the decree in which she received notice of execution proceedings. The present petitioner was very much before this court at the appellate stage. After the petitioner lost in the earlier round of litigation, vide which her applications below Exhibits 37 and 45 were rejected and the order came to be approved by this court vide order dated 8th January 2008, it appears from the record, that immediately an application came to be drafted on 25th January 2008 on the new ground, though it appears that the same has been filed subsequently. The said application has been rightly rejected by the learned Judge of the trial court, after taking into consideration the entire conduct of the petitioner.

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8. As already observed herein above, equitable jurisdiction of this court would come to the assistance of a party who is fair to the proceedings. Though the objection, which is sought to be raised by the present petitioner, could have been very well raised by her, when earlier applications were filed by her which came to be rejected and confirmed by this court, she has chosen to keep one objection in reserve while filing the earlier applications, so as to protract execution of the decree which is

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(8)

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passed in favour of the decree holders. The conduct of the present petitioner, in not raising the objection, which is sought to be raised now, in an earlier applications, speaks volumes about her conduct. Only after the earlier challenge failed up to this court, another ground has been carved out, so as to protract the proceedings.

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9. In that view of the matter, I do not find that any error has been committed by the learned Judge of the executing court in rejecting the application filed by the petitioner.

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10. The petition is, therefore, dismissed with costs which are qnantified at Rs. 10,000/- [Rupees Ten Thousand only].

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bgp/6075wp

Shobha Fulchand Pande v. Chandulal Deepchand Kale and Ors.

Case brief

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Shobha Fulchand Pande v. Chandulal Deepchand Kale and Ors.

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