Partly allowed

Shantaram Bhikan Patil v. Sau Nababai Pandurang Ghule and Anr.

Bombay HC17 Apr 2013WP/1803/2010

Case brief

AI extract

What is this about?

The High Court stays an executing court's order allowing auction sale of attached property. It directs the execution court to decide a pending objection petition filed under Order 21 Rule 58 CPC by a non-decree-holder holding a conditional sale deed before proceeding further.

What did the court decide?

Impugned order allowing auction sale stayed; direction to execute court to decide objection petition under Order 21 Rule 58 CPC within six months.

Shantaram Bhikan Patil Vs Sau Nababai Pandurang… — Execution and Attachment | Bombay HC (2013)

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1 WP 1803.10

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1803 OF 2010

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Shantaram Bhikan Patil .. Petitioner

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Versus

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Sau. Nababai Pandurang Ghuge and another .. Respondents

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Shri C. R. Deshpande, Advocate for the Petitioner. Shri K. D. Bade Patil, Advocate for the Respondent.

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CORAM : S. V. GANGAPURWALA, J. DATE : 17TH APRIL, 2013.

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PER COURT :

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. Heard the learned counsel. The petitioner assails the order passed below Exhibit 40 in Special Darkhast No. 13/2005 whereby the Executing Court has allowed the application filed by the decree holder to sale the attached property in auction.

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Shri Deshpande, the learned counsel for the petitioner submits that the conditional sale deed is executed in favour of the petitioner and the petitioner has filed an objection petition U/O

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2 WP 1803.10

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21 Rule 58 of the Code of Civil Procedure (hereinafter referred as to the “C. P. C.” for the sake of brevity) vide Exhibit 53, the same is still pending and without deciding the objection filed by the present petitioner, the Court has proceeded further to sale the property of which the registered conditional sale deed is executed in favour of the petitioner by the judgment debtor. Unless the objection is decided the Court could not have proceeded further. The Court treated the said objection petition as say filed by third party/petitioner.

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Shri Bade Patil, the learned counsel for the decree holder supports the order and submits that the petitioner would not get any right pursuant to said conditional sale deed. No possession is delivered. The Court has rightly considered the said aspect. The monetary decree is sought to be executed. The petitioner has no right to stall the execution.

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With the assistance of learned counsel I have gone through the orders and various applications given. The application at Exhibit 53 is certainly an objection petition as contemplated U/O 21 Rule 58 of the C. P. C. The petitioner is not party to the decree. The property is already attached by the Court and vide

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3 WP 1803.10

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the said objection Exhibit 53, the petitioner has filed objection as is contemplated U/O 21 Rule 58 of the C. P. C. The same is not a say, but an objection petition. The Court is required to decide the said objection petition on its own merits as per the procedure laid down in the said provision. In the light of the above, I pass the following order.

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O R D E R

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A. The impugned order dated 07.11.2009 passed below Exhibit 40 shall be kept in abeyance till the decision of objection petition filed by the present petitioner below Exhibit 53.

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B. The Court shall decide the said objection petition filed by the petitioner Exhibit 53 U/O 21 Rule 58 of the C. P. C. expeditiously and preferably within a period of six (6) months from today.

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C. The writ petition is accordingly disposed of.

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[ S. V. GANGAPURWALA, J. ]

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bsb/April 13

Shantaram Bhikan Patil v. Sau Nababai Pandurang Ghule and Anr.

Case brief

What is this about?

What did the court decide?

Shantaram Bhikan Patil v. Sau Nababai Pandurang Ghule and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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