Dismissed

Shri. Yasin Rahimtulla Jamadar v. Smt. Amirbi Badshaha Jamadar and Ors.

Bombay HC4 Sept 2023WP/1679/2020

Case brief

AI extract

What is this about?

This single-judge bench held that the warrant issued under Order 21 Rule 35 CPC did not fall within the microscopic scope of Section 47 CPC. The court observed that the decree was ineffective and directed the petitioner to seek remedies from the competent court via Order 9 Rule 13 CPC.

What did the court decide?

Writ petition dismissed without costs; ad-interim relief extended for three weeks.

Shri. Yasin Rahimtulla Jamadar Vs Smt. Amirbi… — Execution and Attachment | Bombay HC (2023)

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1679 OF 2020

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Digitally signed byATUL ATULGANESH GANESHKULKARNI KULKARNI Date: 2023.09.06 17:48:14 +0530

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Yasin Rahimtulla Jamadar… Petitioner
V/s.

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Amirbi Badshaha Jamadar & Ors.… Respondents

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Mr. Ajit M. Savagave for the petitioner.

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Mr. Uday P. Warunjikar for the respondents.

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CORAM :AMIT BORKAR, J. DATED :SEPTEMBER 4, 2023

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P.C.:

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1.The judgment debtor has filed present writ petition
challenging order passed by the Executing Court issuing possession
warrant under Order 21 Rule 35 of the Code of Civil Procedure,
1908.

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2.According to the petitioner, the decree under execution is ex
parte decree. His suit for partition of the suit property is decided
and it is held that the petitioner has share in the property.

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3.The objection raised by the petitioner can be treated as
objection under Section 47 of the Code of Civil Procedure, 1908. It
is well settled that the scope of inquiry under Section 47 is to
adjudicate whether the decree is nullity or has become
inexecutable due to subsequent change in law or conduct of the

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parties.

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4.In the facts of the case, the decree sought to be executed
cannot be termed as decree as the decree is neither against dead
person nor passed by the Court having no inherent jurisdiction.

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5.However, it would be in the fitness of things that the
petitioner to apply before appropriate Court for getting
appropriate relief in relation to ventilation of his grievance.
According to the petitioner, his application under Order 9 Rule 13
of the Code of Civil Procedure, 1908 is pending. It will be open for
the petitioner to apply before said Court for appropriate relief.
However, considering the microscopic scope of Section 47 of the
Code of Civil Procedure, 1908, the discretion exercised by the Trial
Court cannot be termed as perverse.

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6. The writ petition, therefore, stands dismissed. No costs.

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7.The ad-interim relief granted earlier is extended for a period
of three weeks from today.

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(AMIT BORKAR, J.)

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Note:This order is modified as per order dated 6 September 2023 to
incorporate paragraph 7.

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Shri. Yasin Rahimtulla Jamadar v. Smt. Amirbi Badshaha Jamadar and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Yasin Rahimtulla Jamadar v. Smt. Amirbi Badshaha Jamadar 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

Case details

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