Bombay High Court
Kamal Singh D/O Maharajdeen Singh And ... vs Smt. Sharda W/O Suresh Singh Baghel on 17 September, 2018
Author: V.M.Deshpande
Bench: V. M. Deshpande
1 WP4948.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4948 OF 2016
PETITIONERS : 1] Kamal Singh D/o Maharajdeen Singh,
Aged about 69 years, Occu. Retired,
R/o 137, Nelco Society, Subhash Nagar
road, Nagpur-22, Tah. & Dist. Nagpur (MS)
2] Kiran W/o C.S. Vithlani,
Aged about 63 years, Occu. Housewife,
R/o 137, Nelco Society, Subhash Nagar
road, Nagpur-22, Tah. & Dist. Nagpur (MS)
3] Anita W/o G.S. Lokhande,
Aged about 55 years, Occu. Housewife,
R/o 144, Gajanan Nagar, Hingna Road,
Nagpur-16, Tah. & Dist. Nagpur (MS)
VERSUS
RESPONDENT : Smt. Sharda W/o Suresh Singh Baghel,
Aged about 53 years, Occu.: Housewife,
R/o C/o Deepaksingh Umeshsingh Nagwanshi,
Near Swagat Lodge, Gavalipura, Ansari Road,
Sitabuldi, Nagpur.
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Mr. M. P. Khajanchi, Advocate for the petitioners
Mr. Ritesh N. Badhe, Advocate for the respondent.
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CORAM : V. M. DESHPANDE, J.
DATE : SEPTEMBER 17, 2018.
ORAL JUDGMENT
1. On 01.9.2016, notice for final disposal was issued in the ::: Uploaded on - 21/09/2018 ::: Downloaded on - 22/09/2018 00:16:18 ::: 2 WP4948.16.odt present matter. In pursuance to the said notice, respondent appeared and is contesting the present writ petition.
2. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned counsel for the parties.
3. I have heard Mr. M. P. Khajanchi, the learned counsel for the petitioners and Mr. R.N. Badhe, the learned counsel for the respondent.
4. The challenge set up in the present writ petition is to the order dated 25.7.2016 passed by the learned Joint Civil Judge, Junior Division, Warora below Exh.76 in Regular Darkhast No.39 of 1984. By the impugned order, the Court below has rejected the application (Exh.76) seeking amendment to the preliminary objection raised by the petitioners in the execution proceedings.
5. The facts, which gave rise to the present petition has a checkered history. A Regular Civil Suit No. 144 of 1976 was filed by Meerabai Bharatsingh Baghel and Babulal Shivprasad Pande against one Ramdulari W/o Matabalasingh and Subhadra W/o Maharajsing. ::: Uploaded on - 21/09/2018 ::: Downloaded on - 22/09/2018 00:16:18 :::
3 WP4948.16.odt The said civil suit was for declaration and possession. Needless to mention that the suit was contested by the defendants - Ramdulari and Subhadra. However, the trial of the said suit culminated in the judgment and decree dated 01.3.1984, by which the learned Joint Civil Judge, Junior Division, Warora partly decreed the suit and gave a declaration that plaintiff no.1 - Meerabai is the owner of field survey No. 6/1, area 29.29 acres of village Dadapur, Tal. Warora, Dist. Chandrapur in view of Will Deed (Exh.62) dated 15.5.1973. The claim of plaintiff no.2 - Babulal was dismissed.
6. It is informed to this Court that this decree was questioned by the defendants up to Hon'ble Apex Court, however, till the Apex Court, the decree passed by the learned Joint Civil Judge, Junior Division in 1984 was upheld. It is to be mentioned here that though claim of plaintiff no.2 Babulal was dismissed, neither Babulal himself nor anybody on his behalf challenged the said rejection. Consequently, the decree to that extent attained finality.
7. In order to obtain fruits of the decree, plaintiff no.1 - Meerabai lodged Regular Darkhast in the year 1984 and it was ::: Uploaded on - 21/09/2018 ::: Downloaded on - 22/09/2018 00:16:18 ::: 4 WP4948.16.odt registered as Regular Darkhast No.39 of 1984. In the meanwhile, Judgment Debtor Subhadra expired. The present petitioners are the legal representatives of said original Judgment Debtor Subhadra.
8. A preliminary objection was raised by the present petitioners before the Executing Court. The said objection was lodged on 02.7.2015. The sum and substance of the objection was that after death of Meerabai/original decree holder, the execution proceedings were continued by Sharda without obtaining prior permission under Order XXI Rule 16 of the Civil Procedure Code. During pendency of said application, an application for amendment (Exh.76) was filed by the objectors/petitioners whereby they tried to elaborate the objection raised. The said is rejected, hence this writ petition.
9. It is to be noted that as on today, the preliminary objection raised by the present petitioners on the touch stone of Order XXI Rule 16 of the Civil Procedure Code is still not decided by the learned Executing Court. By way of amendment, no new point is introduced by the objectors/petitioners. They only want to elaborate their objection. Therefore, in my view, especially when the preliminary objection is still ::: Uploaded on - 21/09/2018 ::: Downloaded on - 22/09/2018 00:16:18 ::: 5 WP4948.16.odt not decided, the amendment can be allowed. Hence, I pass the following order :
ORDER
1. The order passed by the learned Joint Civil Judge, Junior Division, Warora dated 25.7.2016 below Exh.76 in Regular Darkhast No. 39 of 1984 is hereby set aside.
2. The amendment application (Exh.76) is hereby allowed.
The objectors/petitioners are permitted to incorporate the amendment in the preliminary objection raised by them.
3. The Executing Court is hereby directed to decide the preliminary objection, after granting opportunity to the objectors to carry out the amendment, as expeditiously as possible and in any case on or before 29th November, 2018. It is made clear that in any case the Executing Court shall not grant unnecessary adjournments to the judgment debtor and shall decide the preliminary objection on or before 29th November, 2018.
4. With this, the writ petition is allowed and disposed of. Rule is made absolute accordingly. No costs. Hamdast granted.
V.M.Deshpande, J.
Diwale ::: Uploaded on - 21/09/2018 ::: Downloaded on - 22/09/2018 00:16:18 :::