Writ petition challenging Executing Court's rejection of applications under Section 47 CPC, Order 47, and Order 38 Rule 12 to quash a compromise-decree in a partition suit, dismissed as no case for interference was made out.
Writ petition dismissed. No case for interference with the Executing Court order found.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3663 of 2013
Smt. Muktabai Vasant Sonawane & Ors. versus
Smt. Hirabai Maruti Sonawane & Ors.
: Petitioners
: Respondents
Mr. Aniruddha Pratinidhi a/w Mr. A.V.Borwankar for the Petitioners
CORAM:- R M SAVANT, J DATED :- 22nd APRIL, 2013.
P.C.
which order, the applications Exhibit 55 filed under Order 47 for review, Exhibit 56 filed under Order 38 Rule 12 for attachment before judgment and Exhibit 58 filed invoking Section 47 of the Civil Procedure Code, came to be rejected.
2 The genesis of the proceedings lie in the decree passed in Regular Civil Suit No.79 of 1979 which was decreed on 28-2-1983. The said Suit was a Suit for partition of the joint family properties and was filed by one Maruti who was the husband of Hirabai i.e. Respondent No.1 herein. As indicated above, the said Suit came to be decreed and the Plaintiff Hirabai Sonawane was held entitled to partition and possession of ½ share in the
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suit properties described in schedule A of the Plaint. Against the decreeing of the said Suit, the matter was not carried further and the said decree dated 28-2-1983 became final and binding.
3 At this stage, it is required to be noted that one Vasant Sonawane had filed Regular Civil Suit No.72 of 1979. The Petitioners herein are his heirs and are therefore claiming through him. The said Suit was filed for permanent injunction restraining the Defendants in the said Suit from interfering with the possession of the Plaintiff in respect of the land bearing Gat No.1260. Both the Suits i.e. Regular Civil Suit No.79 of 1979 and Regular Civil Suit No.72 of 1979 were tried together, in so far as Regular Civil Suit No.72 of 1979 is concerned, the same came to be partly allowed and the Defendants therein were restrained from obstructing the possession of the Plaintiff over the suit land being Gat No.1260 till the execution of the final decree in Regular Civil Suit No.79 of 1979. It was observed in the Judgment passed in Regular Civil Suit No.72 of 1979 that in the event the decree of partition is not passed in Regular Civil Suit No.79 of 1979, then the Plaintiff in Regular Civil Suit No.72 of 1979 was to file a Suit for partition within one month of the date of dismissal of Regular Civil Suit No.79 of 1979. The filing of the Suit was made a condition precedent and in the event the Plaintiff failed to file the said
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Suit, the injunction granted in favour of the Plaintiff would stand vacated. It appears that the Defendants in the said Regular Civil Suit No.72 of 1979 filed an Appeal being Civil Appeal No.224 of 1983, which came to be allowed and the Suit being Regular Civil Suit No.72 of 1979 came to be dismissed. The Plaintiff thereafter filed Second Appeal No.119 of 1985. The said Second Appeal came to be dismissed by this Court by order dated 1-2-1995 by observing to the following effect “ that it is always open for
the Appellant to request the Collector to the share of Gulab and his legal representatives so as to enable the Appellant to retain possession.”
4 It is after the dismissal of the Second Appeal that the Plaintiff in Regular Civil Suit No.79 of 1979 filed Regular Darkhast No.6 of 1995 for execution of the decree passed in the said Suit. In the said Darkhast compromise was arrived between Hirabai i.e. heir of the Plaintiff Maruti, Namdev and Vilas Sonawane who were Judgment Debtors in the said Suit. However, the Petitioner No.4 herein who was the Respondent No.4 in the said Darkhast proceedings was not a party to the compromise. Thereafter Misc Application No.3 of 2005 came to be filed by the Respondent No.1 i.e. Hirabai once again for execution of the decree in Regular Civil Suit No.79 of 1979 in terms of the compromise which was arrived at between the parties. Thereafter Misc Application No.1 of 2010 came to be filed by the
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Respondent No.1 for correcting the Gat No.126 to Gat No.1260 in the compromise deed dated 16-4-1998 which application was also allowed. The parties thereafter applied for issuance of possession warrant to the Executing Court in terms of Order 21 Rule 35. The Executing Court issued possession warrant by order dated 4-12-2012. It is thereafter that the Petitioner Nos.3 and 4 herein have filed three applications for the relief sought. In so far as the application invoking Order 47 of the Civil Procedure Code is concerned, the Executing Court was of the view that no case for review of the order dated 4-12-2012 was made out by the Respondent No.4 to the Darkhast proceedings i.e. the Petitioner No.4 herein. The application invoking Order 38 Rule 10 also came to be rejected on the ground that no such case for attachment was made out by the Plaintiff. In so far as the application filed invoking Section 47 is concerned, the Executing Court considered the case of the Plaintiff. The Executing Court was of the view that in the light of the fact that the Respondent No.4 i.e. the Petitioner No.4 herein had not objected to the compromise and had not taken steps for either challenging the Consent Decree or filed a separate Suit for partition as he was a purchaser of an undivided share, the objection raised by the Respondent No.4 to the execution of the decree can not be countenanced. The Executing Court has referred to the Judgments
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relied on behalf of the Respondent No.4 which have been referred to in the body of the impugned order and in the facts and circumstances of the present case, came to a conclusion that the said Judgment would have no application. As indicated above, the Trial Court has by the impugned order rejected all the three applications.
5 The learned Counsel appearing on behalf of the Petitioners Mr. Pratinidhi would contend that considering the fact that the decree was put in execution on 8-3-1995, the execution proceedings were exfacie barred by limitation. The Learned Counsel would contend that the decree ought to have been sent to the Collector for partition by metes and bounds and once the preliminary decree is passed by the Trial Court it became functus officio and it is the Collector who has to partition the properties. It is pertinent to note that no such ground that the execution proceedings being barred by limitation has been taken in the application filed invoking Section 47 of the Civil Procedure Code. A perusal of the above Petition also does not disclose any such ground of limitation being taken. This must be advisedly so in view of the fact that the execution of the decree was set in motion immediately after the Second Appeal which was pending before
this court was dismissed by this Court on 1-2-1995. Hence there is no substance in the said contention of the Learned Counsel for the Petitioners
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that the execution proceedings are ex facie barred by limitation. In so far as the second submission of the Learned Counsel is concerned it is required to be noted that the Plaintiff and the Defendants in the said Regular Civil Suit No.79 of 1979 arrived at a compromise by which they decided to partition the property in a particular manner. In view of the said compromise it was not necessary for the matter to be sent to the Collector for division by metes and bounds, hence there is no substance in either of the contentions of the Learned Counsel for the Petitioners. In the light of the facts as afore stated, where the compromise arrived at in the said Regular Darkhast No.6 of 1995 between the Appellant and the Respondent Nos.2 and 3 was not taken exception to by the Respondent No.4 i.e. the Petitioner No.4 herein and when the Petitioner No.4 herein who is undoubtedly the purchaser of an undivided share has not filed any suit for partition. The impugned order passed by the Executing Court rejecting the said three applications cannot be found fault with. No case for interference is therefore made out. The Writ Petition is accordingly dismissed.
(R M SAVANT, J)
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3 issues framed by the court
Whether the High Court can interfere with the Executing Court's rejection of applications filed under Section 47 CPC, Order 47, and Order 38 Rule 12 concerning the execution of a partition decree.
Whether the limitation defence regarding the execution of the decree is sustainable given the compromise arrived at between the parties.
Whether a purchaser of an undivided share who did not object to a compromise or file a separate partition suit can challenge the execution decree.
4 provisions across 2 enactments
Smt. Muktabai Vasant Sonawane & Ors.
Smt. Hirabai Maruti Sonawane & Ors.
R.M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
