Dismissed

Shri Keshav Devram Tatane and Others Two v. Baburao Nandram Shinde Deceased through L R S Balkrushna Baburao Shinde

Bombay HC28 Nov 2023SA/518/2023

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by obstructionists challenging the sale of property under an execution decree. The Court held that rejection of the application under Order 21 Rule 97 CPC was correct due to lack of necessary pleadings regarding independent right, title, or interest. The appeal was dismissed, and the executing Court was directed to dispose of the pending execution p

What did the court decide?

The second appeal was dismissed. The executing Court was directed to dispose of Execution Petition No.70 of 2001 within three months.

Shri Keshav Devram Tatane and Others Two Vs Baburao… — Execution and Attachment | Bombay HC (2023)

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17-sa518-2023.doc

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VRJ

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.518 OF 2023

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VAIBHAV RAMESH JADHAV

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Digitally signed byVAIBHAV RAMESH JADHAV Date: 2023.11.2914:23:19 +0530

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Keshav Devram Tatane & Ors. … Appellants V/s. Baburao Nandram Shinde Since Deceased Through Legal Heirs … Respondents

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Mr. Rushikesh Kharat i/by Mr. Ambadas N. Mahale for the appellants.

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Mr. C. G. Gavnekar with Mr. Ashutosh Gavnekar with Mr. Rohit Parab for the respondents.

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CORAM : AMIT BORKAR, J.

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DATED : NOVEMBER 28, 2023

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P.C.:

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The obstructionist under Order 21 Rule 97 of the Civil Procedure Code, 1908 has filed present second appeal challenging the concurrent decrees passed by the Courts below.

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The respondent No.3-original plaintiff filed Regular Civil Suit No.97 of 1973 for injunction. In the said suit the defendants filed counter claim for restoration of possession. The Trial Court dismissed the suit and counter claim. However, the Appellate Court in Regular Civil Appeal No.92 of 1993 allowed the counter claim and directed the plaintiff to handover possession of suit land to the defendants.

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17-sa518-2023.doc

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In furtherance of such decree, the defendant No.1 filed Execution Petition No.70 of 2001. On warrant of possession being issued, the present appellants filed an application under Order 21 Rule 97 of the Civil Procedure Code, 1908. The Trial Court and the Appellate Court rejected the application recording a finding that the appellants have failed to show their independent right, title and interest in the suit property.

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According to learned advocate for the appellants, appellants are entitled to protect their possession based on adverse possession. In the context of said submission, I scrutinized the application filed by the appellants. On perusal of the application, it is clear that necessary pleadings giving rise to the plea of adverse possession are not pleaded. It is well settled that in absence of pleading no amount of evidence can substitute such pleading.

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On meaningful reading of the application, it appears that the objection raised by the applicant is only to the extent that his possession should not be disturbed without following due process of law. No independent right or title or interest is pleaded in the obstruction application. In absence of such pleading of independent right or title or interest, there cannot be any evidence of said right being considered by the Courts below. On perusal of the judgment passed by the Courts below, it appears that there is neither pleading nor proof of independent right or title or interest. Therefore, Courts below have rightly rejected objection under Order 21 Rule 97 of the Civil Procedure Code. 1908. Therefore, no substantial question of law is involved.

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17-sa518-2023.doc

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The second appeal is dismissed. No costs.

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Considering the fact that the execution petition is pending for more than twenty years, the executing Court shall decide the Execution Petition No.70 of 2001 within three months from today.

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(AMIT BORKAR, J.)

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Shri Keshav Devram Tatane and Others Two v. Baburao Nandram Shinde Deceased through L R S Balkrushna Baburao Shinde

Case brief

What is this about?

What did the court decide?

Shri Keshav Devram Tatane and Others Two v. Baburao Nandram Shinde Deceased through L R S Balkrushna Baburao Shinde

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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