Dismissed

Kalyani Krushna Mhatre Alias Shailaja Govind Patil v. Ajit Yashwant Toankar

Bombay HC14 Feb 2024IA/1485/2024

Case brief

AI extract

What is this about?

The court rejected a civil appeal challenging the dismissal of an execution obstruction application. It held that the defence of the Plaintiff's mother being a tenant was already decided in the main suit, precluding relitigation in execution proceedings. No substantial question of law arose.

What did the court decide?

The appeal was rejected and the interim application was disposed of as nothing survives.

Kalyani Krushna Mhatre Alias Shailaja Govind Patil… — Execution and Attachment | Bombay HC (2024)

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kishor 1/2 16 SA 98 of 2024 (C).doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 98 OF 2024 WITH IA/1485/2024 IN SA/98/2024

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Kalhyani Krushna Mhatre Alias Shailaja Govind Patil Versus Ajit Yashwant Todankar

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...Appellant ...Respondent

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Mr. Ojas Kacharekar, for Appellant. Mr. Gaurav Parkar, for Respondent.

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CORAM : SANDEEP V. MARNE, J. DATED : 14 FEBRUARY 2024.

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P.C. :

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The challenge in the present Appeal is to the Judgment and Order dated 16 December 2023 passed by the District Judge-3, RaigadAlibag dismissing the Appellants Regular Civil Appeal No.07 of 2023 and confirming Order dated 04 February 2023 passed by the 3^rd Jt. Civil Judge, Junior Division, Alibag.

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It appears that Plaintiff’s suit bearing Regular Civil Suit No.98 of 2001 was decreed on 27 February 2012 directing Defendant Nos.1 to 3 to demolish the construction in the suit property and to handover possession thereof to the Plaintiff. It appears that the decree has been upheld up to the

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kishor 2/2 16 SA 98 of 2024 (C).doc

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Apex Court. When the decree was put in execution, Appellant filed application under provisions of Order 41, Rule 97 claiming possession of the suit property.

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The obstruction of the Appellant was premised on an assertion that her mother Radhabai Patil was the tenant in respect of suit property. The executing Court rejected the obstructionist’s application by Order dated 04 February 2023.

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Appellant filed Regular Civil Appeal No.07 of 2023 challenging the Order of the executing Court. The Appellate Court has however held that defence of Plaintiff’s mother Radhabai Patil being tenant in respect of suit property was raised and decided by the Trial Court while deciding the suit. What is sought to be done is to set up same defence through another person branding her as obstructionist in the execution proceedings. In that view of the matter the obstruction sought to be raised by the Appellant was clearly baseless. Appellant cannot permitted to raise very same issue which has been considered and decided by the Trial Court and the First Appellate Court in the main suit proceedings.

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I therefore do not find any patent error in the Order passed by the Trial Court and First Appellate Court. No substantial question of law is involved in the Appeal. The Appeal is accordingly rejected. Since the Appeal is rejected, nothing survives in the Interim Application and it is also disposed of.

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SANDEEP V. MARNE, J.

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Digitally signed KISHOR by KISHORVISHNU VISHNU KAMBLE KAMBLE Date:2024.02.16 12:36:53 +0530

Kalyani Krushna Mhatre Alias Shailaja Govind Patil v. Ajit Yashwant Toankar

Case brief

What is this about?

What did the court decide?

Kalyani Krushna Mhatre Alias Shailaja Govind Patil v. Ajit Yashwant Toankar

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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