Dismissed

Hemant Ramesh Bhagwat v. Jagannath Mahadev More and Ors.

Bombay HC16 Sept 2013CRA/686/2013

Case brief

AI extract

What is this about?

The High Court dismissed the civil revision application challenging orders dismissing an application under Order 21 Rule 97 CPC. The court held the application was misconceived as the petitioner had no independent interest in the suit property and thus could not obstruct execution.

What did the court decide?

Civil Revision Application dismissed with no case for invocation of powers under Section 115 of the CPC.

Hemant Ramesh Bhagwat Vs Jagannath Mahadev More and… — Execution and Attachment | Bombay HC (2013)

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1 / 4 CRA /686 /2013

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Tapadia RR/B. (ii)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 686 OF 2013

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Shri Hemant Ramesh Bhagwat

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..Petitioner

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Jagannath Mahadev More and Ors

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.. Respondents

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Mr. Girish R Agrawal, Advocate for the petitioner.

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CORAM : R.G.KETKAR,J. DATE : 16/09/2013

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PC:

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Heard Mr. Girish Agarwal, learned counsel for the petitioner.

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By this Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.'), the obstructionist has challenged the Judgment and order dated 30.10.2012 passed by the learned 4^th Jt. Civil Judge, Jr. Dn Nashik below Exh.22 in R.D.No.113 of 2010 as also the Judgment and order dated 14.6.2013 passed by the learned District Judge-6, Nashik in Civil Appeal No.530 of 2012. By these orders, the application filed by the petitioner herein under Order 21 Rule 97 of C.P.C. was dismissed by the Courts below.

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The petitioner filed application under Order 21, Rule 97 CPC alleging that he is in possession of the area of 9' x 18 ' abutting eastern side of the suit property in his own right. He acquired knowledge about passing of the decree against respondent no.7

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2 / 4 CRA /686 /2013

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only when respondent no.7 started making preparations to move out of the suit premises. In view thereof, he has filed the present application claiming independent right in the suit premises and for declaration that the decree in Regular Civil Suit No.66 of 2000 is not binding on him and for injunction.

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The application was resisted by respondent nos 1 to 6 by filing reply at Exh.26 contending, inter alia, that the application is filed by the petitioner at the behest of respondent no.7-judgment debtor. The obstructionist is the son of the judgment debtor and is residing along with the judgment debtor. The application is filed in collusion with the judgment debtor with a view to depriving the decree holders of the fruits of decree.

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Mr. Agrawal submitted that in a suit filed against respondent no.7, it was alleged by respondent nos 1 to 6 that he had encroached upon the rest of their premises and thereby infringed the terms of conditions of tenancy. This plea was turned down both by the trial court as also the Appellate Court. He submitted that the applicant is in possession of the premises other than the premises in Regular Civil Suit No.66 of 2000.

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I have considered the submissions of Mr Agrawal. I have also perused the material on record. In paragraph 9, the trial Court observed that the petitioner did not dispute that the judgment debtor viz respondent no.7 was a tenant of respondent

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3 / 4 CRA /686 /2013

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nos 1 to 6. It was also not disputed that he is a family member of the judgment debtor. The learned trial Judge therefore observed that the petitioner cannot have any independent right in the suit property. In paragraph 10 the learned trial Judge observed that the petitioner does not claim to be in settled possession of the suit property but he claims to be in possession of the independent property adjacent to the suit property. Having regard to the fact that the suit premises can be identified distinctly by municipal house number and the area, the learned trial Judge held that it is not necessary to hold inquiry in respect of the contention raised by the petitioner herein.

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Aggrieved by this decision, the petitioner preferred Appeal before the learned District Judge. In para 17 of the impugned order, the learned District Judge confirmed the findings recorded by the trial Court to the effect that the petitioner has made his claim in respect of a totally different premises and that he has no concern with the suit premises and that execution of the decree can be carried out with the help of specific description given therein. The learned District Judge further recorded that the petitioner herein failed to show that the order of the trial Court was perverse and not sustainable.

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Mr.Agrawal also did not contend before me that the petitioner has any right, title or interest in respect of the suit

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4 / 4 CRA /686 /2013

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premises in Regular Civil Suit No.66 of 2000. In my opinion, having regard to this, the application made by the petitioner under Order 21 Rule 97 itself was misconceived. A person claiming some semblance of interest in respect of the suit property can obstruct the decree and in such situation the proceedings under order 21 Rule 97 can be taken out. In the present case, the petitioner is not claiming any interest in the suit. In view thereof, I do not find that the courts below committed any error in dismissing the application made by the petitioner under order 21 Rule 97. In the result, no case is made out for invocation of powers under section 115 of the C.PC. The Civil Revision Application fails and the same is dismissed.

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(R.G.KETKAR, J.)

Hemant Ramesh Bhagwat v. Jagannath Mahadev More and Ors.

Case brief

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Hemant Ramesh Bhagwat v. Jagannath Mahadev More and Ors.

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