Allowed

Mandakini Pralhad Panhale v. Subhash Pandurang Dahihande and Ors.

Bombay HC23 Jan 2012WP/183/2012

Case brief

AI extract

What is this about?

The High Court allowed a petitioner challenging the rejection of a stay in execution proceedings. The court directed the executing court to dispose of the pending objection regarding property boundaries within three months and allowed execution of the decree to proceed while preserving the petitioner's possession of a specific portion of land until the objection is decided.

What did the court decide?

Direct that the executing court considers the objection under Order 21 Rule 97 on merits within three months. Allow execution subject to not disturbing petitioner's possession of the disputed acre unt

Mandakini Pralhad Panhale Vs Subhash Pandurang… — Execution and Attachment | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 183 OF 2012

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Mandakini W/o Pralhad Panhale, Age : 44 Years, Occu. : Household, R/o 81, Jai Vishwabharati Colony, Aurangabad.

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.. Petitioner

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Versus

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Subhash S/o Pandurang Dahihande, Age : 36 Years, Occu. : Business, R/o Dahihande Galli, Chikhalthana, Aurangabad.

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Pandurang S/o Shankar Dahihande, Age : 63 Years, Occu. : Agril., R/o Dahihande Galli, Chikhalthana, Aurangabad. (Now deceased)

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Uma W/o Prabhakar Kulkarni, Age : 56 Years, Occu. : Household, R/o Osmanpura, Aurangabad.

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Sanjeevani W/o Vijay Lathkar, Age : 38 Years, Occu. : Business, R/o Osmanpura, Aurangabad.

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Sudha W/o Laxmikant Joshi, Age : 34 Years, Occu. : Agril., R/o Osmanpura, Aurangabad.

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Sopanrao S/o Ramrao Suryawanshi, Age : 45 Years, Occu. : Agril., R/o Osmanpura, Aurangabad.

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Kamla W/o Prabhulal Doshi, Age : 50 Years, Occu. : Household, R/o Chintamani Colony, Aurangabad. .. Respondents

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Shri V. J. Dixit, Senior Counsel i/by Shri A. N. Nagargoje, Advocate for the Petitioner.

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Smt. Langhe, Advocate for the Respondent No. 1.

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CORAM : S. V. GANGAPURWALA, J.

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DATE : 23RD JANUARY, 2012.

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ORAL JUDGMENT :

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. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing.

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The present respondent No. 1 has filed suit for partition

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and separate possession. The same came to be decreed vide judgment and decree dated 16.09.2002. The plaintiff/decree holder filed darkhast for execution. During the pendency of the said darkhat, the present petitioner filed an application Exhibit 27 raising objection U/O 21 Rule 97 of the Code of Civil Procedure. Along with the objection U/O 21 Rule 97 of the C. P. C., the petitioner also filed stay petition. The said stay petition is

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rejected. Aggrieved thereby present petition is filed.

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Shri V. J. Dixit, the learned Senior Counsel instructed by Shri A. N. Nagargoje, the learned counsel for the petitioner submits that the suit property was only 2 Guntha from gut No. 641 and 2 Acres 15 Guntha from gut No. 642. Out of gut No. 642 admeasuring 3 Acres 15 Guntha, 1 Acre was sold to Kesharbai and was not made part and parcel of the suit property. Such avernments are made in para 2 of the plaint. It is specifically stated that as the sale deed in favour of Kesharbai to the extent of 1 Acre is with the consent of all the parties, the said Kesharbai Kishan Dahihande is not made party. The learned senior counsel contends that though the said 1 Acre is not part of said property and the share of plaintiff would come to only 47R, still the execution is filed claiming 61R land meaning thereby the plaintiff is claiming share from whole 3 Acre 15 Gunthas. According to the learned counsel the executing court on merits has not considered the objection and while rejecting the stay petition has observed that the precept has been sent U/Sec. 54 of the C. P. C. and there is no report of resistance by any person to execution and present application for stay is not maintainable, such a observation is against the legal position.

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Mrs. Langhe, the learned counsel for the original plaintiff/decree holder submits that the petitioner is a purchaser of the property vide sale deed dated 19.12.2003 i. e. after the decree is passed. In such circumstances, the petitioner has no locus standi to raise any objection in the execution proceedings. Even a suit was filed by the petitioner. The Court dismissed the suit holding that the present petitioner is not bonafide purchaser of the said property. That would lead credence to the case of the respondent/plaintiff that the petitioner has no right to maintain the objection. As such, the stay petition has been rightly rejected. Twice the precept has been sent, but the decree is not executed. The respondent No. 1 is not in a position to execute the decree.

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With the assistance of learned counsel I have gone through the order. As yet no final decree has been passed. The suit property as it appears from the plaint is to the extent of 2 Acres 15 Guntha. Whether the objection raised by the petitioner in respect of 1 Acre of the property was part of 2 Acres and 15 Guntha i. e. suit property or not was required to be prima facie discussed while considering the stay petition. It appears from the record that no such discussion with regard to the area and boundaries has been made by the executing court while rejecting

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the application Exhibit 27.

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The civil court would have jurisdiction to decide about the objection. It is not that after physical obstruction is raised then only a party is entitled to file an objection U/O 21 Rule 91. The Court has to see that the persons filing the objection is in possession or not.

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It is contended by the learned counsel that an objection U/O 21 Rule 97 is still pending and is not disposed of. The executing Court shall consider the said objection U/O 21 Rule 97 on its merits and giving finding on the same. The objection petition filed by the petitioner shall be considered and decided by the Executing Court expeditiously and preferably within a period of three (3) months from today.

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It is made clear that till the said objection petition U/O 21 Rule 97 of the C. P. C. is decided the authorities to whom the precept has been sent U/Sec. 54 of the C. P. C. shall go on with the measurement of the suit property and all the steps in execution till the delivery of possession be completed. The possession of the 1 Acre land claimed by the petitioner pursuant to sale deed dated 19.12.2003 from defendant No. 6, who in turn

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is said to have purchased the property from Kesherbai shall not be disturbed. It is made clear that there is no stay to any further proceedings of execution except the stay to the possession of the property in possession of the petitioner, till the decision of objection filed by the petitioner U/O 21 Rule 97 of the C. P. C.

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Rule is made accordingly absolute in above terms, however, with no order as to costs.

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Sd/- [ S. V. GANGAPURWALA, J. ]

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bsb/Jan. 12

Mandakini Pralhad Panhale v. Subhash Pandurang Dahihande and Ors.

Case brief

What is this about?

What did the court decide?

Mandakini Pralhad Panhale v. Subhash Pandurang Dahihande and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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