Dismissed

Goba Lalchand Pawar and Others v. Vithabai Shankar Bhojane and Others

Bombay HC6 Dec 2018WP/3854/2014

Case brief

AI extract

What is this about?

In an oral order, the High Court of Judicature at Bombay (Bench at Aurangabad) rejected three writ petitions filed by a judgment debtor challenging orders passed during execution proceedings. The court held that the lower judge correctly rejected delays and identified the suit property, dismissing attempts to obstruct execution of a decree already confirmed by the Supreme Court.

What did the court decide?

The writ petitions are rejected; no specific relief granted as they are dismissed.

Goba Lalchand Pawar and Others Vs Vithabai Shankar… — Execution and Attachment | Bombay HC (2018)

¶1

Madkar

¶2

1 W.P. No. 5338-2014+2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

¶4

928 .WRIT PETITION NO.5338 OF 2014

¶5

Goba S/o Lalchand Pawar and others … Petitioner
 Versus
 …
Vithabai W/o Shankar Bhojane and othersRespondents

¶6

WITH

¶7

WRIT PETITION No. 3854 of 2014

¶8

Goba S/o Lalchand Pawar and others … Petitioner
 Versus
 …
Vithabai W/o Shankar Bhojane and othersRespondents

¶9

WITH

¶10

WRIT PETITION No. 5339 of 2014

¶11

Goba S/o Lalchand Pawar and others … Petitioner
 Versus
 …
Vithabai W/o Shankar Bhojane and othersRespondents

¶12

Mr. K.F. Shingare, Advocate for petitioner in all petitions.
Mr. R.R. Karpe, Advocate for respondents No. 1/A, 1/D-1, 1/D-2

¶13

Coram : N.M. Jamdar, J.

¶14

Date : 6 December 2018.

¶15

Madkar

¶16

2 W.P. No. 5338-2014+2

¶17

ORAL ORDER :

¶18

1.Heard the learned Counsel Mr Shingare for the petitioner
and the learned Counsel Mr Karpe for the respondents.

¶19

2.These three petitions filed by the petitioner/judgment
debtor arise from execution of the decree passed in Regular Civil Suit
no. 155 of 1999. The respondent No.1/original plaintiff filed the suit
being Regular Civil Suit No. 155 of 1999 for declaration, possession
and injunction in respect of the suit property an agricultural land
situated at village Sitanabi Tanda Taluka Kannad District
Aurangabad. The suit was decreed by the learned Civil Judge (Junior
Division), Kannad, by the judgment and decree dated 2 August 2003.
The petitioner filed Regular Civil Appeal No. 112 of 2009. The
appeal was dismissed by the learned District Judge on 17 November
2009. The Second Appeal was filed by the petitioner in this Court,
which was dismissed on 1 April 2014. Special Leave petition filed by
the petitioner was dismissed by the Supreme Court on 31 January
2017. The respondent/plaintiff filed Darkhast proceedings on 4
February 2014 before the Civil Judge (Junior Division), Kannad.

¶20

3.During the execution of this decree, the

¶21

petitioner/judgment debtor sought to raise various objections to stall

¶22

Madkar 3 W.P. No. 5338-2014+2

¶23

the execution. These are negatived by the learned Civil Judge by
passing three different orders on the three different applications
moved, from which the present petitions arise.

¶24

4.In Writ Petition No. 5339 of 2014, the petitioner has
challenged the order passed by the learned Civil Judge below Exh. 72
in the Darkhast proceedings. The petitioner had sought dismissal of
the execution proceedings on the ground that the Civil Court has no
jurisdiction in view of the provisions of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act. The learned
Counsel for the petitioner has reiterated the contentions. There is no
substance in this submission. The argument regarding jurisdiction was
raised in the concluded proceedings. The argument relating to the
Consolidation Scheme was urged before the learned Civil Judge as it is
clear from the judgment, as extract of the Consolidation Scheme was
marked at Exhibit 64. The learned Civil Judge has, therefore, rightly
observed that the matter on merits is concluded upto the Apex Court.
Therefore, there is no substance in this writ petition.

¶25

5.In Writ Petition No. 3854 of 2014 and Writ Petition No.
5338 of 2014, the petitioner has raised overlapping issues. In Writ
Petition No. 3854 of 2014, by the impugned order, the application of

¶26

Madkar 4 W.P. No. 5338-2014+2

¶27

the petitioner to call the Court Commissioner to ascertain identity of
the property, is rejected. In Writ Petition No. 5338 of 2014, the
petitioner has challenged the order passed of issuance of possession
warrant.

¶28

6.In both these petitions, the learned Civil Judge has
referred to appointment of the Court Commissioner passed below
Exh. 37. The Court Commissioner filed his report vide Exh. 65
alongwith the map. The Court Commissioner also submitted a report
at Exhibit No. 85. The petitioner has sought to contend that the
boundaries in the report of the Court Commissioner and the
boundaries in the decree and execution do not match with each other.
The learned Civil Judge has rightly criticised this contention as an
attempt to postpone the execution proceedings. Merely by creating
some suspicion about identity of the property, the execution of decree
passed in the year 2003, cannot be deferred. The learned Civil Judge
has looked into this contention. He has also looked into the report of
the Commissioner and the map. The suit property is categorically
identified and some of the names in the report are of unauthorised
occupants. The learned Counsel for the respondent/plaintiff has
pointed out that the execution application is in consonance with the
decree and the description of the property is in the plaint.

¶29

Madkar

¶30

5 W.P. No. 5338-2014+2

¶31

7.Apart from this position, it is settled that the decree will
have to be executed as it is and as per the schedule. The application to
call the Commissioner again to ascertain identity of the property, has
been correctly rejected by the learned Civil Judge on the ground that
it is only to prolong the matter. The order passed on the possession
warrant was kept in abeyance and in furtherance of the same, the
order was passed on 21 February 2014.

¶32

8.Notices were issued in these petitions in the year 2014.
Since various respondents could not be served, the petitions have
remained pending and the decree has not been executed.

¶33

9.In these circumstances, there is no merit in any of the
petitions filed by the judgment debtor. These petitions are nothing
but attempt to deprive the respondent/plaintiff from fruits of the
decree, after having succeeded throughout in the proceedings upto the
Supreme Court. The writ petitions are rejected.

¶34

10.Needless to clarify that the learned Civil Judge will ensure
that the decree is executed as per the description in the execution
application.

¶35

N.M. Jamdar, J.

Goba Lalchand Pawar and Others v. Vithabai Shankar Bhojane and Others

Case brief

What is this about?

What did the court decide?

Goba Lalchand Pawar and Others v. Vithabai Shankar Bhojane and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Subhadrabai Ramdas Ghodke and Another through Gpa Nagorao Laxman Sontakke Vs Shantabai Ramdas Ghodke and Others

Arjun Namdeo Molawane and Others Vs the State of Maharashtra and Others

Hemlata Ratan Waghmode Vs Shyamsunder Shankarrao Parkhe

Laxman Khanderao Jogdand Vs Maha State Road Transport Corporation Abad

Manjit Kaur Harvindersingh Bindra Vs Khirabai Govind Pawar and Another

Pratap Vinodkumar Munot Vs Arohi Pratap Munot