Single judge dismissed writ petition by judgment debtor challenging order rejecting objection to execution of decree and issuing possession warrant. Court rejected plea for delay tactics
Writ petition rejected; executing court orders confirmed; possession warrant upheld.
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WP-7222.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.
WRIT PETITION NO. 7222 OF 2015
Digambar s/o Vitthal Mete Age 66 years, occup. Agriculture Petitioner/ R/o village Bharaj, Taluka Ambejogai, J.D. No. 4/ District Beed Defendant
versus
Mr. Rajendrraa S. Deshmukkh with Amol Joshi, Advocates for petitioner Mr. T. G. Gaikwad, Advocate for respondents
CORAM : SUNIL P. DESHMUKH, J. 24TH JULY, 2015
ORDER:
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2. This appeal is presented by the judgment debtor challenging the order passed by the learned Single Judge thereby confirming the order passed by the lower Court rejecting objection application presented in execution proceeding.
3. Regular Civil Suit No. 228/1981 presented by original plaintiffs-respondents herein claiming recovery of possession came to be decreed. Judgment and decree passed by the trial Court was subject matter of first appeal which came to be dismissed and thereafter second appeal presented at the instance of appellant herein-original defendant has also been dismissed. Application for special leave to appeal presented by appellant herein also been dismissed by the Apex Court. After loosing the legal battle in all the Courts, appellant proceeded to raise objection during execution proceeding contending that description of the property so far as it relates to the property numbers is incorrect and as such decree is inexecutable. Objection raised by the judgment debtor has been turned down by the executing Court. It is observed that the property can be identified by considering the boundaries mentioned in the suit
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and therefore the decree is executable . Learned Single Judge has confirmed the view adopted by the executing Court. We do not find any infirmity in the order passed by the learned Single Judge dismissing the writ petition presented at the instance of appellant/judgment debtor. Judgment debtor has successfully prolonged execution of decree and has kept away original plaintiffsrespondents herein from receiving the fruits of the decree.
4. In view of the above, trial Court is directed to expeditiously dispose of execution proceedings and ensure execution of decree. Letters Patent Appeal is devoid of substance hence stands dismissed.
5. Pending civil application, if any, does not survive and stands disposed of. “
“3. The miscellaneous civil application was resisted by the decree holders by filing their say at Exhibit-11/B. It was contended by them that the contents of the application are incorrect and false. They also denied the contention that decree holders have no right in the property as appearing in the map under Exhibit-135/D and
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those are contrary to the sketch map of the pleadings. They further refer to various applications as have been made from time to time by the relatives of judgment debtor and contend that this is yet another attempt to delay the execution of decree.
4. The executing court, vide order impugned had considered that Sanjay Dhondiram Jadhav, son-in-law of present petitioner/judgment debtor No. 4 had filed writ petition no. 4141 of 2011 for decision afresh on the objection application filed at Exhibit-164 in the execution proceeding and the same has been dismissed. Said Sanjay Dhondiram Jadhav purportedly transferred the suit property to Sunandabai w/o Digamber Mete wife of judgment debtor No. 4 i.e. present petitioner during the pendency of the execution proceeding. Sunandabai had filed application Exhibit-110 purporting to object to the execution petition. Her application has also been rejected on 06-079-2014. Sunandabai against rejection of her objection had been before this Court by filing writ Petition No.9372 of 2014. Said writ petition came to be rejected by this Court on 10-11-2014.
5. Present petitioner-Digamber had filed writ petition bearing No.3624 of 2011 raising similar objection to the execution of decree that the decree is not executable in view of the changed circumstances, the property cannot be identified. Said writ petition was rejected by learned Single Judge of this Court on 09-06-2011. Thereafter, present Miscellaneous Civil Application has been filed by the petitioner. Against order dated 09-06-2011 passed by the learned Single Judge of this Court, Letters Patent Appeal Stamp No.16657 of 2011 had been filed. The division bench of this Court under order dated 01-08-2014 dismissed the Letters Patent Appeal observing that the property can be identified by considering the
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boundaries mentioned in the suit and therefore the decree is executable.
6. The trial court appears to have taken stock of the entire situation and has considered that present application has been filed by judgment debtor No. 4 with a view to prolong the execution of the decree. It appears that execution is being sought in respect of the property claimed in the suit.
7. Taking into account aforesaid, objection as has been raised is unsustainable for, the decree has been passed in respect of the properties claimed in the plaint and execution in respect of the same has been sought. This is another attempt to delay and procrastinate execution of the decree.
8. As such, I am not inclined to exercise discretion vested in this Court, under Articles 226 and 227 of the Constitution of India. Writ Petition stands rejected. “
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several applications have been moved by the petitioners. The executing court as such concluded that the application was not tenable and was filed with an intention to prolong the execution. So is the case in respect of Exhibit-254 wherein the executing court has observed that earlier, the judgment debtor had filed civil applications which were decided by said court and that there is no stay to the execution of the decree.
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“16. This Court while exercising power under Article 227 of the Constitution of India, ordinarily is concerned with the decision making process and not decision itself. The quasi-judicial authorities, the Courts subordinate to this Court are required to follow the procedure in relation to the case dealt with by them. In the view, I have taken leads me to remit the case back with some directions. Another reason for remittance undisputedly is disposal of the appeal by learned Divisional Joint Registrar, Co-operative Societies, Nasik, which was filed under Section 152 by judgment debtor and has been disposed of on 19/3/08. “
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and 5577 of 2015. He submits that as a matter of fact, decee holders are seeking execution of the judgment and decree as had been passed by the civil courts and not anything further and the judgment debtor himself or at his behest other persons are trying to delay and defraud the execution of the decree. Petitions are being filed before this court on one pretext or the other. Judgment debtor or others at his behest are now seeking to adduce evidence after a period of fifteen years has lapsed after the decree has been passed. The intention underlying the applications is obvious. As a matter of fact, the decree has to be executed as has been passed by the civil courts.
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decree. Needless to refer to that the decree will have to be executed in the terms it has been passed. A division bench of this court has already observed that the property can be identified while description of the same is given in the plaint. The execution of the decree as such should take place in accordance with the decree. Applications have been moved on the suspicion and apprehension or on the pretext that execution of decree would not take place in accordance with the decree passed by civil court. I do not think that the submissions and contentions being raised on behalf of the petitioner carry any weight in present scenario, particularly having regard to procrastination of execution of decree by judgment debtor and at his behest by others. I do not, therefore, deem it appropriate to exercise discretionary powers in favour of the petitioner.
14. Writ petition stands rejected.
SUNIL P. DESHMUKH, J.
pnd
3 issues framed by the court
Whether high court can exercise writ jurisdiction under Articles 226 and 227 to interfere with executing court order rejecting objection to decree execution.
Whether petitioner's successive petitions delaying execution of decree warrant constitutional intervention.
Whether property decreed can be identified for execution despite change in consolidation record.
DIGAMBAR S/O VITTHAL METE
RAJARAM S/O SAMBHAJI METE
BHAGWAN S/O SAMBHAJI METE
RAM S/O SAMBHAJI METE
SUNIL P. DESHMUKH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
