The High Court of Bombay, Nagpur Bench dismissed a second appeal arising from execution proceedings. The court held that the appellant, who admitted being a tenant, had no locus standi to resist the decree and the objection was frivolous intended to delay execution.
Second appeal dismissed; time to vacate premises within three months granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
sa189.12.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.189 OF 2012
Jawaharlal Badluji Shahu vs. Vasantkumar Marotrao Ingle
......................................................................
Office Notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's order
of directions and Registrar's orders
Shri A.S.Chandurkar, Counsel for the Appellant.
Shri D.B.Walthare, Counsel for the Respondent.
CORAM : M.N.GILANI,J. DATE : 05th MAY, 2012.
1]One Shri Bhaiyyasaheb s/o Marotrao Ingale
and Shri Vasantrao Marotrao Ingale�respondent
herein, filed a suit against the appellant for
recovery of possession and licence fee. The
suit was dismissed. In an appeal before the
learned District Judge, Nagpur, the judgment
and decree passed by the trial Court was set
aside and in turn suit for recovery of the suit
premises was decreed. This was challenged by
filing the Writ Petition No.4494 of 2009. This
Court on 12.11.2009 dismissed the writ
petition. The LPA was disposed of as not
maintainable. Thus, the judgment and decree of
recovery of possession of the suit premises has
attained the finality.
2]The execution proceedings were resisted
.....2/-
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sa189.12.odt
by the appellant by raising the objection
before the executing Court. It was on the
ground that the decree was obtained by playing
fraud upon the Court by suppressing the fact of
litigations going on between the parties and
other material facts.
3]The learned executing Court framed issues
and heard the parties. After relying upon the
decision in the case of Savitribai A.Salvi Vs.
Suman Navgire, reported in 2009(5) Mh.L.J.387
learned executing Court held as follows-
Therefore this objection raised
by way of such application by the
judgment debtor has no merit, no
locus standi nor having legal
stands, no right at all. Hence it
is merely raised to obstruct the
decree, execution of the decree
and that to any how to delay the
execution proceeding, therefore
application is not tenable and
objection needs to be over ruled
and to be rejected. I answer
point no.1 in negative. I proceed
torejecttheobjection,
dismissed the same with costs
with following order:-.
4]The crux of the matter is - admission of
the appellant that he was the tenant of
Bhaiyyasaheb. This has been highlighting by
this Court while disposing of Writ Petition
No.4494 of 2009. It was observed that:-
.....3/-
sa189.12.odt
3
With the assistance of both the
learned counsel, I have perused
the records. Perusal of appellate
court order shows that the
appellate court has found that
the Relinquishment Deed Exh.36
was a registered one and it
further found that there was
notice Exh.39 issued by Advocate
Dani for and on behalf of
petitioner to Bhayyasaheb, in
which petitioner accepted that he
had taken premises on rent from
Bhayyasaheb. It has further found
that there was no source of
income to the mother of
plaintiffs before it, and the
facts, therefore, revealed that
Bhayyasaheb purchased plot in the
name of his two brothers. It also
found that at the time when Sale
Deed Exh.50 was obtained, Nana
was only 21 years old.
In view of above, the appellant-original
defendant seems to have no right to resist the
decree.
5]Decision in the case of Smt.Gangabai vs.
Smt. Chhabubai, reported in AIR 1982 SC 20,
relied upon by Shri A.S.Chandurkar, the learned
Counsel for the appellant, is on the point of
Small Causes Court deciding the issue of title,
which admittedly does not operate as res
judicata.
6]In view of the fact that the appellant in
so many words had admitted that he was a tenant
.....4/-
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sa189.12.odt
of Bhaiyyasaheb, the ratio in the case cited
supra does not support in any manner the stand
of the appellant.
7]For the aforestated reasons, I do not
find any merit in this Second Appeal. The same
is, therefore, dismissed summarily.
8]At this stage, Shri A.S.Chandurkar, the
learned Counsel for the appellant, prays for
grant of time to vacate the premises and
undertakes to vacate the premises within three
months from the date of this order.
Time to vacate suit premises in the above
terms is granted.
JUDGE
brw
...../-
2 issues framed by the court
Whether the appellant has locus standi to resist execution of a decree obtained on grounds of alleged fraud and suppression of litigation.
Whether admission of tenancy by the appellant precludes him from challenging the title issue in execution proceedings.
Colour shows how this judgement treated each authority
Savitribai A.Salvi Vs. Suman NavgireReferred¶18
2009(5) Mh.L.J.387 · Who else cites this
Smt.Gangabai vs. Smt. ChhabubaiDistinguished¶28
AIR 1982 SC 20 · Who else cites this
Jawaharlal Badluji Shahu
Vasantkumar Marotrao Ingle
M.N.GILANI
As recorded by the court registry
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