Dismissed

Shakerabanu Afsar Patel Thr Her Att Nasir Nuruddin Patel v. the State of Maharashtra and Ors.

Bombay HC6 Mar 2023WP/6555/2021

Case brief

AI extract

What is this about?

A two-judge bench dismissed a writ petition challenging an earlier order alleged to be obtained by fraud, holding that the petition was not maintainable. The court directed the proceedings to be challenged in the appropriate forum under Order XXIII CPC, reserving merits for later.

What did the court decide?

Writ petition dismissed as not maintainable without going into merits of the fraud allegation.

Shakerabanu Afsar Patel Thr Her Att Nasir… — Civil Procedure and Limitation | Bombay HC (2023)

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 24- WP 6555 of 2021.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 6555 OF 2021

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VAISHALI ANIL TIKAM

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Digitally signed by VAISHALI ANIL TIKAM Date: 2023.03.10 14:32:26 +0530

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Shankerabanu Afsar Patel ….Petitioner

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Vs.

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The State of Maharashtra and Ors.

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….Respondents

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Mr. S.K. Kudle, Advocate for the Petitioner

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Mr. N.K. Rajpurohit, AGP for Respondent Nos.1 to 5

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Mr. P.r. Suryawanshi i/by Mr. G.M. Savagave for Respondent Nos. 6 and 7

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Mr. Ketan Dhavle i/by Mr. Saurabh Oka, Advocate for Respondent No.8

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Mr. T.J. Pandian, Advocate for Respondent No.5

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Mr. S.S. Aradhye, Advocate for Respondent No.6

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CORAM:- R.D. DHANUKA & GAURI GODSE, JJ.

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DATE :- 6TH MARCH, 2023.

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P. C.:

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The Petitioner has impugned the order passed by

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this Court in Second Appeal No. 690 of 2014 in this Writ Petition, on the ground that fraud is committed by some of

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the Respondents in obtaining the order in Second Appeal No. 690/2014.

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Tikam page 1 of 3

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Learned counsel for the Respondent Nos. 6 and 7 raises an issue regarding maintainability of this Writ Petition. Our attention is invited to the order dated 12^th April, 2022 passed by the Division Bench of this Court. By the said order, dated 12^th April, 2022, this Court has already observed; if the Petitioner contends that the fraud has been played by the Respondents then the proper procedure is to be challenge the said order obtained by fraud before the appropriate forum and not in Writ Petition. Provisions of Order XXIII of the Code of Civil Procedure would come into play. This Court after making these observations, directed the learned counsel for the Petitioner to consider this aspect.

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Mr. Kudale, learned counsel for the Petitioner states that since the fraud is committed in obtaining the order in Second Appeal, this Court can set aside the order passed in Second Appeal, in Writ Petition.

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We are afraid, we cannot accept the submission made by the learned counsel for the Petitioner .

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Writ Petition is accordingly dismissed as not maintainable. No order as to costs.

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It is made clear that this Court has not gone into

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Tikam page 2 of 3

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 24- WP 6555 of 2021.doc

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the correctness of the order passed in Second Appeal for want of jurisdiction. If any appropriate proceedings are filed by the Petitioner, the same shall be decided on its own merits. All contentions of the parties are kept open.

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(GAURI GODSE, J.)

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( R.D.DHANUKA, J. )

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Tikam page 3 of 3

Shakerabanu Afsar Patel Thr Her Att Nasir Nuruddin Patel v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Shakerabanu Afsar Patel Thr Her Att Nasir Nuruddin Patel v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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