Writ petition challenging rejection of application to dismiss execution proceedings. High Court held execution must be stayed until legal heirs are ascertained via pending appeals against rejected succession certificates.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
48 WRIT PETITION NO.7691 OF 2022
PRATAP SINGH HANSRAM SINGH CHOVHAN DIED LRS
CHANDRAMOHANSINGH PRATAPSINGH CHAVAN
VERSUS
VASANTRAO PRALHADRAO MULAVEKAR DIED LRS
CHANDRAKANT LAXMIKANT MULAVEKAR AND OTHERS
Advocate for Petitioner : Mr. Pradip Narayanrao Sonpethkar
Advocate for Respondent Nos.1 to 7 : Mr. M.K. Deshpande
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 11-01-2023
PER COURT :
.The petitioner is aggrieved by the order dated
07.06.2022 passed by 3rd Jt. Civil Judge Junior Division, Parbhani
below Exh.68 in Reg. Darkhast No.39 of 2011 whereby the
petitioner’s application for dismissal of the darkhast came to be
rejected.
2. Heard the learned counsel appearing for the parties.
3.The admitted position is that the petitioner herein the
judgment debtor has suffered the decree for eviction which was put
in execution. During the execution proceedings, the original
judgment debtor and the decree holder expired. By the order dated
17.01.2020 the alleged legal heirs of the deceased decree holder -
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Vasantrao came to be brought on record. Subsequently the alleged
legal heirs of the deceased decree holder Vasantrao filed application
under Section 372 of the Indian Succession Act and also proceedings
under Section 2 of Bombay Regulation Act for issuance of Succession
Certificate and Legal Heirship Certificate respectively, which came to
be rejected.
4.In view of the said position, the judgment debtor filed an
application which came to be rejected by the Executing Court only on
the ground that the order dated 17.01.2020 bringing the respondents
on record as legal heirs has not been challenged.
5.Perused the papers with the assistance of the learned
counsel appearing for the parties. In my opinion, the application
could not have been filed by the judgment debtor for dismissing the
darkhast on the ground that there are no legal heirs of the deceased
decree holder on record. Admittedly, there are Class-II heirs of the
deceased decree holder and there appears to be inter se dispute
which is apparent from the orders passed in the proceedings under
the Indian Succession Act and Bombay Regulation Act. It has to be
determined as to who are the legal representatives of the deceased
decree holder.
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6.The learned counsel for the respondents submits that the
orders refusing the Succession Certificate and Legal Heirship
Certificate are the subject matter of appeals.
7.In my view, unless the legal representatives of the
deceased decree holder are ascertained and the appeals filed by the
respondents as against the dismissal of the proceedings under the
Indian Succession Act and Bombay Regulation Act are adjudicated,
the execution proceedings are required to be kept in abeyance.
Hence the following order.
ORDER
(i)Regular Darkhast No.39 of 2011 pending before 3rd Jt. Civil
Judge Junior Division, Parbhani be kept in abeyance until the Appeal
Nos.1 of 2021 and 2 of 2021 pending before the District Court,
Parbhani are finally decided. Upon the Appeal Nos.1 of 2021 and 2
of 2021 being finally decided, the respondents are at liberty to move
the execution proceedings.
.The writ petition is allowed in the above terms.
( SHARMILA U. DESHMUKH, J. )
GGP
3 issues framed by the court
Whether execution proceedings can continue when there is an inter se dispute regarding legal heirs of the judgment debtor.
Whether the execution proceedings must be kept in abeyance until the appeals against the rejection of succession and heirship certificates are decided.
Whether the application for dismissal of the darkhast should have been rejected due to the pending suit of succession.
1 provisions across 1 enactments
Pratap Singh Hansram Singh Chovhan D'Lrs
Vasantrao Pralhadrao Mulavekar D'Lrs
Chandrakant Laxmikant Mulavekar
Sharmila U. Deshmukh
As recorded by the court registry
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