Dismissed

Shaikh Musa Shaikh Umar and Anr. v. the State of Mah and Ors.

Bombay HC9 Jan 2013WP/28/2013

Case brief

AI extract

What is this about?

This writ petition challenged an execution order rejecting a substantive objection regarding specific performance proceedings. The court held that the High Court cannot interfere with the impugned judgment under Article 226 as a substantive appeal lies under Section 96 CPC. The petitioner also lacked locus standi due to selling the property and delay.

What did the court decide?

Impugned orders and the judgment of the Civil Court were upheld; no order as to costs.

Shaikh Musa Shaikh Umar and Anr. Vs the State of Mah… — Execution and Attachment | Bombay HC (2013)

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W.P.No.28/13

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO.28 OF 2013

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.Rajendra Sadaphule, advocate for the petitioners.
Mr. S.K.Kadam, Asstt. Govt. Pleader for the State.
Mr.P.K.Palve, advocate for Respondent No.4.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 09.01.2013.
PER COURT :

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Heard.

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The present Respondent Nos.4 and 5 have filed a suit for specific performance of contract. The same was decreed. The Respondent Nos.4 and 5 have filed execution proceedings. In the execution proceedings, the petitioner No.1 herein who is the son of original defendant No.1 Sk.Umer had filed an objection purportedly U/s 47 read with Order XXI Rule 97 of the C.P.C. The said objection is filed on 11.2.2011. The trial Court rejected the said objection vide order dated 11.2.2011. The said order is assailed after a lapse of one and half years by way of present Writ Petition.

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By way of present Writ Petition even the judgment and decree passed by the Court is assailed.

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W.P.No.28/13

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Mr.Sadaphule, learned counsel for the petitioner strenuously contends that petitioner No.2 has purchased the property from petitioner No.1 and other heirs of Sk.Umer vide registered sale deed dated 16.10.2012. The learned counsel submits that the petitioner No.2 was not aware of the judgment and decree passed by the Court. Even the petitioner No.2 has filed RCS No.767/2012 before the Civil Court at Jalna against the present Respondent Nos. 4 and 5. They have appeared in the said suit but had not disclosed about the decree passed in their favour for specific performance of contract. If the petitioner No.2 would have been aware of the said decree then the petitioner No.2 would not have purchased the property.

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The learned counsel contends that the decree passed in Special Civil Suit No.14/2006 is a nullity and without jurisdiction. The learned counsel contends that the provisions of the Tenancy Act are not at all considered by the Court and as such the said decree is also challenged in the present Writ Petition. The learned counsel submits that the trial Court while rejecting the objection Exh.60 has not considered the legality of the matter. The Court could not have executed sale deed in favour of the present Respondent Nos.4 and 5 on 24.12.2012.

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Mr.Palve, learned counsel for Respondent Nos.4 and 5 submits that the defendants had sold the property to third parties

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W.P.No.28/13

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and the third parties had filed appeal challenging the judgment and decree passed in Special Civil Suit No.14/2006. The said appeal is pending.

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According to the learned counsel the original judgment debtors had not challenged the said decree by way of appeal and the Court has rightly executed the decree.

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With the assistance of the learned counsel, I have gone through the orders passed. The objection Exh.60 is only filed by petitioner No.1. The petitioner No.2 claims to be a purchaser who has not filed any objection. Moreover, the judgment and decree passed by the Civil Court could not have been assailed in the writ jurisdiction under Article 227 of the Constitution of India. Substantive appeal is provided U/s 96 of the C.P.C. for the same, as such the challenge to the judgment and decree passed in Special Civil Suit No.14/2006 is not being considered in the present Writ Petition. The parties at liberty to take appropriate steps in that regard.

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As far as the objection on behalf of the petitioner No.1 is concerned, the said objection was filed on 11.4.2011 and the same is rejected on the same day i.e. 11.4.2011. No explanation is given for not challenging the said order for more than one and half years. Moreover, the petitioner No.1 has sold the property vide registered sale deed dated 16.12.2012, as such now can not have locus to

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W.P.No.28/13

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challenge the said order. The order below Exh.16 was not challenged by the petitioner No.1 until he has sold the property to petitioner No.2 and has come before this Court after selling the property. No equity can be exercised in favour of the petitioner No. 1.

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Moreover, the petitioner No.1 is not claiming any independent right. The Court has observed that during the life time of Sk.Umer, the petitioner No.1 could not have claimed any right and the decree passed against Sk.Umer was not challenged by any of the defendants.

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In light of the above, no case for interference is made out. The Writ Petition is dismissed. However, there shall be no order as to costs.

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(S.V.GANGAPURWALA,J.)

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Dt.09.01.2013. asp/office/wp28.13

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W.P.No.28/13

Shaikh Musa Shaikh Umar and Anr. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Shaikh Musa Shaikh Umar and Anr. v. the State of Mah and Ors.

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

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