Dismissed¶43

Smt. Chhayabai Wd/O Tulsiram Fandi and Others v. Deorao S/O Sitaram Vaidya

Bombay HC21 Jan 2026WP/531/2026

Case brief

AI extract

What is this about?

Bombay High Court, Nagpur Bench; 2026:BHC-NAG:1442; Writ Petition No.531 of 2026 (decided 21/01/2026, Rohit W. Joshi, J.). Keywords: Regular Darkhast No.08 of 2013; execution proceedings; dismissal of execution; non-deposit of decretal amount within stipulated period; Section 28 Specific Relief Act 1963; rescission of agreement of sale; Section 2(3) Code of Civil Procedure 1908; definition of decree holder; defendant as decree holder; defendant maintaining execution; Special Civil Suit No.1063 of 1997; decree dated 04.01.2006; Rs.2,00,000/- with 12% interest; M.A.N.R.J.E. No.48 of 2009; Writ Petition No.4515 of 2024; Civil Judge Junior Division Mouda; saw mill Mouda; writ petition dismissed, no order as to costs.

What did the court decide?

None; the Writ Petition is dismissed with no order as to costs. ¶43

Smt. Chhayabai Wd/O Tulsiram Fandi and Others vs Deorao… — Specific Performance | Bombay HC (2026)

What the court decided

AI extract

Outcome

None; the Writ Petition is dismissed with no order as to costs.

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Issue for consideration

Whether the learned Executing Court rightly rejected the petitioners' application at Exh.65 seeking dismissal of the execution proceedings (Regular Darkhast No.08 of 2013) on account of the defendant's failure to deposit the decretal amount within the period stipulated under the decree dated 04.01.2006. +1 more

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Court's answer

The learned Executing Court was fully justified in rejecting the application at Exhibit-65 seeking dismissal of the execution proceeding on the ground of non-deposit of the decretal amount within the stipulated period. Although the non-deposit is not disputed, the petitioners' application under Section 28 of the Specific Relief Act, 1963 for rescission of the contract was rejected by the trial Court and confirmed by this Court, and that order has assumed finality between the parties; further, the order dated 23.09.2009 granting the defendant permission to deposit the amount (granted after the stipulated time had lapsed) was never challenged. The impugned order therefore does not warrant interference.

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Ratio / Principle

A 'decree holder' as defined under Section 2(3) of the Code of Civil Procedure, 1908 is any person in whose favour a decree capable of execution is passed, and the definition is not restricted to a plaintiff alone. Where an executable order/decree is passed in favour of a defendant, the defendant can enforce the decree by filing execution proceedings. Accordingly, the learned Executing Court committed no error in permitting the execution proceedings to continue at the behest of the original defendant.

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Detailed headnote1 paragraphs

Writ Petition dismissed. The High Court of Bombay, Nagpur Bench (Rohit W. Joshi, J.; decided 21/01/2026) declined to interfere with the order dated 10.09.2025 of the Civil Judge Junior Division, Mouda on applications Exhs.65 and 74 in Regular Darkhast No.08 of 2013 (execution of the decree dated 04.01.2006 in Special Civil Suit No.1063 of 1997 directing payment of Rs.2,00,000/- with 12% interest). (i) The original plaintiffs'/decree holders' application at Exh.65 for dismissal of execution on the ground that the judgment debtor failed to deposit the decretal amount within the stipulated time was rightly rejected: their Section 28, Specific Relief Act, 1963 application (M.J.C. No.08 of 2012) for rescission of the agreement of sale dated 20.02.1984 had been rejected on 26.06.2024 and the rejection confirmed in Writ Petition No.4515 of 2024 on 23.08.2024, attaining finality between the parties, and the order dated 23.09.2009 in M.A.N.R.J.E. No.48 of 2009 permitting the defendant to deposit the amount after the stipulated period had lapsed stood unchallenged. (ii) On Exh.74, the Court held that 'decree holder' under Section 2(3), Code of Civil Procedure, 1908 means any person in whose favour a decree capable of execution is passed and is not restricted to the plaintiff alone; a defendant in whose favour an executable order is passed may himself enforce the decree by filing execution proceedings. Petition dismissed with no order as to costs.

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2026:BHC-NAG:1442

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22.wp.531.2026 Judgment.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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WRIT PETITION NO.531 OF 2026

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PETITIONERS :- 1) Smt. Chhayabai Wd/o Tulsiram Fandi (Orig. Plaintiffs/D.Hrs.) Aged about 81 years, Occ. : Household,

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1. Sanjay S/o Tulsiram Fandi (Dead) Through LRs-

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2(a) Smt. Durga Wd/o Sanjay Fandi Aged about 35 years,

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2(b) Ku. Yamini D/o Sanjay Fandi Aged about 18 years, Student

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1. Ratnamala D/o Tulsiram Fandi Aged about 39 years, Occ.: Household,

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1. Hemraj S/o Tulsiram Fandi Aged about 38 years, Occ.: Agriculturist

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1. Yogita D/o Tulsiram Fandi Aged about 36 years, Occ.: Household,

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1. Uttam S/o Lataruji Fandi Aged about 70 years, Occ.: Agriculturist All Petitioner are R/o. Sharda Chowk, Mouda, Tah. Mouda, Dist. Nagpur.

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.. VERSUS ..

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RESPONDENT :- Deorao S/o Sitaram Vaidya (Orig. Deft./J,Dr.) Aged about 83 years, Occ. Business & Agriculturist, R/o. Near Jai Stambh, Mouda, Tah. Mouda, Dist.-Nagpur.

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Mr. Abhay Sambre, Advocate for Petitioners. Mr. O.A. Ghare, Advocate for Respondent.

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CORAM : ROHIT W. JOSHI, J. DATE : 21/01/2026

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22.wp.531.2026 Judgment.odt

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ORAL JUDGMENT :

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Heard finally with consent of learned counsel for the respective parties.

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The present petition takes exception to the order dated 10.09.2025, passed by the learned Civil Judge Junior Division, Mouda, on application at Exhibits-65 and 74 in Regular Darkhast No.08 of 2013. The petitioners are the original plaintiffs who had filed a suit being Special Civil Suit No.1063 of 1997 inter alia contending that the defendant had entered into an agreement of sale with them with respect to the suit property, which is a saw mill situated at Mouda and that the defendant had not paid the consideration of Rs.2,00,000/- as per the agreement. The prayer in the suit was to direct the defendant to pay an amount of Rs.2,00,000/- and to get the sale deed executed from the plaintiff with respect to the suit property within a stipulated time frame or direct the defendant to deliver possession of the suit property to the plaintiff. The said suit came to be decided vide judgment and decree dated 04.01.2006. The learned trial Court has directed the

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defendant to pay a sum of Rs.2,00,000/- to the plaintiff with interest at the rate of 12% per annum from the date of institution of

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22.wp.531.2026 Judgment.odt

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suit i.e. 09.10.1997, till the date of payment, i.e. 30.04.2006. The

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decree further provides that in the event of failure on the part of the defendant to make payment, it will be open for the plaintiff to execute the decree. It is not in dispute that the defendant did not deposit the amount as directed by the learned trial Court within the stipulated time period. However, the defendant filed an application for permission of time and to deposit the amount vide M.A.N.R.J.E. No.48 of 2009, which came to be allowed vide order dated 23.09.2009.

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It will also be pertinent to mention that the present petitioners/plaintiffs has also filed M.J.C. No.08 of 2012 under Section 28 of the Specific Relief Act, 1963, for rescission of agreement of sale dated 20.02.1984 executed between the parties. The said application was rejected by the learned trial Court vide order dated 26.06.2024 and Writ Petition No.4515 of 2024 filed by the present plaintiff challenging the said order came to be dismissed by this Court vide order dated 23.08.2024.

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In this backdrop, the present petitioners filed an application vide Exh.65 in Regular Darkhast No.08 of 2013 for dismissal of the execution proceedings on account of failure on the part of the defendant to deposit the amount within the period

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22.wp.531.2026 Judgment.odt

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stipulated under the decree. The said application is rejected by the learned Executing Court vide impugned order dated 10.09.2025.

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The fact that amount is not deposited within the stipulated period is not in dispute. However, the application under Section 28 for the Specific Relief Act, filed by the present petitioner was rejected by the learned trial Court and the said order is confirmed by this Court. In view of the above, the prayer for recession of contract on account of failure to deposit the amount within a stipulated period is rejected as the said order has assumed finality between the parties.

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It is also not in dispute that the application filed by the defendant for seeking permission to deposit amount came to be allowed on 23.09.2009 i.e. after the time stipulated in the decree had lapsed. This order dated 23.09.2023 is also not challenged. The learned Executing Court has rejected the application at Exh.65 relying on the aforesaid two orders.

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In the considered opinion of this Court, the learned Executing Court was fully justified in rejecting the application at Exhibit-65 which was filed seeking dismissal of execution proceeding on the ground that plaintiff did not deposit amount as per decree, in view of earlier order rejecting application for

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22.wp.531.2026 Judgment.odt

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recession of contract, which is confirmed by this Court as also order dated 23.09.2009 granting permission to deposit the amount. The order rejecting the application at Exh.65 therefore does not warrant any interference.

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Another application came to be filed by the present petitioner vide Exh.74 inter alia contending that a defendant in a civil suit is not entitled to file execution proceeding and that the right to file execution proceeding is vested with the plaintiff alone. Perusal of the decree passed by the learned trial Court will demonstrate that the learned trial Court passed a decree for recovery of money in favour of the plaintiffs and also a decree in favour of the defendant directing execution of the sale deed in his favour by the plaintiffs. The term ‘decree holder’ is defined under Section 2(3) of the Code of Civil Procedure, 1908 to mean any person in whose favour a decree capable of execution is passed. The definition is not restricted to a plaintiff alone. In case any executable order is passed in favour of the defendant, the defendant can also enforce the decree by filing execution proceedings. In view of the aforesaid, the learned Executing Court has not committed any error in permitting the execution proceedings to continue at the behest of the original defendant.

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22.wp.531.2026 Judgment.odt

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In view of the aforesaid, the impugned orders do not

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warrant any interference. Writ Petition is accordingly dismissed with

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no order as to costs.

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(ROHIT W. JOSHI, J.)

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C.L. Dhakate

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 10.09.2025 passed by the learned Civil Judge Junior Division, Mouda on applications at Exhibits-65 and 74 in Regular Darkhast No.08 of 2013, rejecting the petitioners' application (Exh.65) for dismissal of the execution proceedings for non-deposit of the decretal amount within the stipulated period, and permitting the execution proceedings to continue at the behest of the original defendant.¶2
Civil Judge Junior Division, Mouda (Executing Court) · 10.09.2025
Prior proceeding
Special Civil Suit No.1063 of 1997 filed by the petitioners/original plaintiffs against the respondent/original defendant in respect of an agreement of sale dated 20.02.1984 of a saw mill at Mouda, alleging non-payment of consideration of Rs.2,00,000/-; decided by judgment and decree dated 04.01.2006 directing the defendant to pay Rs.2,00,000/- with interest at 12% per annum from 09.10.1997 till 30.04.2006, failing which the plaintiff could execute the decree.¶22
Prior proceeding
Defendant's application M.A.N.R.J.E. No.48 of 2009 for permission of time and to deposit the decretal amount, allowed vide order dated 23.09.2009, i.e. after the time stipulated in the decree had lapsed; not challenged.¶27
Prior proceeding
M.J.C. No.08 of 2012 filed by the petitioners/plaintiffs under Section 28 of the Specific Relief Act, 1963 for rescission of the agreement of sale dated 20.02.1984; rejected by the trial Court vide order dated 26.06.2024; challenge in Writ Petition No.4515 of 2024 dismissed by this Court vide order dated 23.08.2024.¶28
Prior proceeding
Execution proceeding, Regular Darkhast No.08 of 2013, pending before the Civil Judge Junior Division, Mouda, continued at the behest of the original defendant.¶39
Prior proceeding
Application at Exh.74 filed by the petitioners/plaintiffs in Regular Darkhast No.08 of 2013 contending that a defendant in a civil suit is not entitled to file execution proceedings and that the right to file execution is vested with the plaintiff alone.¶8

Smt. Chhayabai Wd/O Tulsiram Fandi and Others v. Deorao S/O Sitaram Vaidya

Case brief

What is this about?

What did the court decide?

Smt. Chhayabai Wd/O Tulsiram Fandi and Others v. Deorao S/O Sitaram Vaidya

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

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