Dismissed

Gorakh Murlidhar Kadam and Others v. Shri Parshwanath Digmabar Jain Mandir Trust Indapur

Bombay HC29 Apr 2013CRA/333/2013

Case brief

AI extract

What is this about?

This court dismissed a civil revision application challenging the rejection of an objection by heirs against their impleadment as judgment debtors in execution proceedings. The court held that under Section 50 of the CPC, impleadment in execution without prior inquiry was permissible barring competing claims.

What did the court decide?

The writ petition was dismissed for lack of case for interference.

Gorakh Murlidhar Kadam and Others Vs Shri… — Execution and Attachment | Bombay HC (2013)

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cra-333.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.333 OF 2013

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Gorakh Murlidhar Kadam and ors. : Applicants. Versus Parshwanath Digamabar Jain Mandir Trust Indapur & ors. : Respondents.

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Mr. Avinash B Awhad for the Applicants. Mr.P B Shah for the Respondent Nos.1 to 6

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CORAM : R. M. SAVANT, J. DATE : 29^th April 2013

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P.C.

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1 The writ jurisdiction of this Court is invoked against the order dated 23/1/2013 passed by the learned Civil Judge, Junior Division, Indapur i.e. the Executing Court by which order the objection filed by the Petitioners to the execution of the decree on the ground that they have been impleaded as Judgment Debtors directly in the execution proceedings without they being parties in the Courts below, came to be rejected.

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2 The Petitioners are the heirs of one Murlidhar Rama Kadam who has suffered a decree of possession in Regular Civil Suit No.56 of 1977 which decree is dated 7/10/1985. The said decree has been confirmed right up to this Court in Second Appeal No.339 of 1989. The said fact is undisputed. It appears that during the pendency of the said Second Appeal, the Judgment

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Debtor Murlidhar Rama Kadam expired. The Respondent No.1 which is a public trust and who is the Decree Holder put the decree in execution by filing Regular Darkhast No.3 of 2009. In the said darkhast the Petitioners herein have been arrayed as Judgment Debtors on the basis that they are the heirs of the said Murlidhar Rama Kadam i.e. the original Judgment Debtor. As indicated above, the objection was taken by the Petitioners to their being impleaded as Judgment Debtors on the ground that they were not the parties to the proceedings in which the decree was passed. The said objection has been rejected by the impugned order dated 23/1/2013.

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3 The principal contention of the the learned counsel appearing for the Petitioners is that the Petitioners could not have been impleaded without there being any application and that it was necessary for the Executing Court to conduct an inquiry as regards who is the legal representative of the original Judgment Debtor as contemplated under Rule 5 of Order XXII of the Code of Civil Procedure. In support of the said contention the learned counsel for the Petitioners sought to rely upon the judgments of the learned Single Judges of this Court reported in 2011 (Supp.) Bom. C. R. 171 in the matter of Raghunath Parbati Chavan v/s. Tarabai Shakar Chavan & ors. and 2012 (5) Bom. C R. 37 in the matter of Roni Adi Tarapurwala & Anr. v/s. Dinshaw Adarji Tarapurwala since deceased through Lrs. & ors.. The first judgment in Reghunath Chavan’s case concerns the impleadment of the heirs in the

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original proceedings i.e. the suit in which fact situation a learned Single Judge of this Court held that an inquiry under Rule 5 of Order XXII of the Code of Civil Procedure would have to be carried out and the heirs could not be impleaded directly. The second judgment in Tarapurwala’s case concerns a Second Appeal where there were competing claims as to who was the heir of a particular party. It is in the said fact situation that an inquiry was directed to be carried out under Rule 5 of Order XXII of the Code of Civil Procedure.

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4 In so far as the instant proceedings are concerned, they relate to the execution of the decree. In terms of Section 50 of the Code of Civil Procedure where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. The provisions of Rule 12 of Order XXII are also relevant. The said rule postulates that the provisions of rules 3, 4 and 8 would have not application to the proceedings in execution of a decree or order. If in the context of the said provisions the instant matter is viewed, the impleadment of the Petitioners herein without they being parties to the original proceedings cannot be said to be against the provisions of law as ultimately the endeavour is to see to it that the decree is executed. Moreover what is also to be noted is that there are no competing claims.

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5 It is required to be noted that in so far as the Second Appeal is concerned, the same was dismissed for non-prosecution on account of the fact that the office objections were not removed. It seems that the Petitioners herein have moved an application for restoration of the said Second Appeal, which as indicated herein above, was filed by the Judgment Debtor Murlidhar Rama Kadam. It is pertinent to note that though the Petitioners have applied for restoration of the Second Appeal filed as heirs of the said Murlidhar, they are objecting to they being arrayed as Judgment Debtors to the execution proceedings.

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6 In that view of the matter, no case for interference is made out. The above Writ Petition is accordingly dismissed.

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[R.M.SAVANT, J]

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Gorakh Murlidhar Kadam and Others v. Shri Parshwanath Digmabar Jain Mandir Trust Indapur

Case brief

What is this about?

What did the court decide?

Gorakh Murlidhar Kadam and Others v. Shri Parshwanath Digmabar Jain Mandir Trust Indapur

Case brief

What is this about?

What did the court decide?

What the court decided

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