Bombay High Court
Manoj Mohanlal Kanojiya And Others vs Mohd. Rizwanul Haq S/O Mohd. Mobinul Haq ... on 21 December, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL 428 OF 2017
1 Manoj Mohanlal Kanojiya
aged 52 yrs, Occ. Laundry Business,
R/o. Besides Hotel Skkylark Shrawgi Plots,
Akola, Tah. Dist. Akola
2 Santosh Mohanlal Kanojiya,
Aged 35 yrs, occ. Laundry Business,
R/o. Besides Hotel Skylark Shrawgi Plots,
Akola, Tah. Dist. Akola
3 Smt. Sartibai wd/o. Mohanlal Kanojiya,
Aged 65 yrs, Occ. Household,
R/o. Deepak Square Akola
(since dead appellants 1 & 2 sons
are already on record) ...APPELLANTS
...V E R S U S...
1 Mohd. Rizwanul Haq s/o. Mohd
Mobinul Haq
aged 45 yrs,
2 Mohd. Faizunul Haq s/o. Mohmd.
Mobinul Haq
aged 43 yrs,
3 Smt. Mahe Anwar wd/o. Mohamed
Mobinul Haq,
aged 71 yrs,
4 Miss. Sehba d/o. Mohd. Mobinul Haq,
aged 41yrs
No. 1 to 4 all earlier r/o. Haq Manzil
Mominpura, Akola, presently
residing at Surana Layout, Nagpur
Tah. Dist. Nagpur
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2
5 Manish Guruprasad Murai
aged 32 yrs, L.R.s of Orig. def.1
residing near Hanuman Temple
Govt. Godown Khadan, Akola
Tah. and Dist. Akola
L.R. of defd.2.
6 Khushalchand Dhamecha
aged : major/adult, Shrawgi Plots,
Near Z.P. Urdu School, Tower-Umari
road, Akola Tah. Dist. Akola
Defd. 5
6 Sk. Bannu s/o. Sk. Noor,
adult, Occ. Mistry,
Shrawagi Plots, Near Z.P. Urdu
School Towar Umari Road,
Akola, Tah. Dist. Akola
Defd.6. ...RESPONDENTS
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Shri B.N. Mohta, counsel for appellants.
Shri S.A. Mohta, counsel for respondents 1 to 4.
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CORAM :ROHIT B. DEO, J.
DATE : 21st DECEMBER, 2018.
ORAL JUDGMENT
Heard Shri B.N. Mohta, the learned counsel for appellants and Shri S.A. Mohta, the learned counsel for respondents 1 to 4.
2 This appeal preferred under section 100 of the Civil Procedure Code ("Code") is finally heard on the following substantial questions of law:
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"i] Whether the Executing Court, could have decided the application preferred by the objector for permission to adduce evidence, after rejecting the objections under Order XXI, rule 35 of the Code of Civil Procedure, which objections are treated by both the Courts below as objections under Order XXI, Rule 97 of the Civil Procedure Code?
ii] Whether the appellant has made out a case for remitting the matter to the Executing Court?"
3 Few relevant facts may be noted.
Respondents 1 to 4 instituted Regular Civil Suit 105 of 2002 for eviction, possession, recovery of arrears of rent, taxes and damages. In the said suit, Guruprasad Murai and Ramtibai Murai are impleaded as defendants 1 and 2. Kamlakar Chandwadkar and Mohan Kanojiya were impleaded as defendants 3 and 4, however, since they died during the pendency of the suit and the legal heirs were not brought on record, the suit abated as regards Kamlakar Chandwadkar and Mohan Kanojiya. Khushalchand Dhameja and Sheikh Noor are impleaded as defendants 5 and 6. By judgment and decree dated 19.4.2011, the 2 nd Joint Civil Judge, Junior Division, Akola decreed the suit. 4 The present appellants are the legal heir of deceased Manoj Kanojiya who was impleaded in the civil suit and against whom the suit abated.
::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:09:16 ::: 4 5 The decree holders filed Darkhast Application 290 of 2012 to execute the decree in Regular Civil Suit 105 of 2002. Record reveals that warrant of possession was issued in the execution proceeding to which the appellants filed objection under Order XXI Rule 35 of the Code. The objection to the execution of the decree is predicated interalia on the ground that there was no decree or possession against the predecessor of the objectors deceased Mohan Kanojiya as the suit against him abated. It is irrefutable that the objections preferred are treated as objections under Order XXI Rule 97 of the Code. 6 In view of the course which I propose to adopt, it wold not be necessary and indeed may be inappropriate, to make any decisive observation on the merits of the objections although the learned counsel appearing on behalf of the contesting respondents Shri S.A. Mohta vehemently submits that the objections are frivolous, and that the objectors have no locus to oppose the execution of the decree of possession, is concluded by the finding recorded in the earlier round of litigation. 7 Record reveals that the course adopted by the trial Court in deciding the objections is highly unsatisfactory to say the least and it is unfortunate that the error committed by the trial ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:09:16 ::: 5 Court is not corrected in the first appeal. The scheme of the Code is that objections under Order XXI rule 97 of the Code are to be tried as suit. It is possible that in a given factual situation, it may not be necessary for the executing Court to record elaborate evidence if from irrefutable material on record it is possible for the trial Court to decide the objections. However, in the present case, the objectors moved an application Exh. 26 on 1.12.2015 for opportunity to adduce evidence. This application was not considered and the objections came to be rejected by the executing Court by order dated 8.2.2016. Surprisingly, it is after the executing Court rejected the objections that the application seeking opportunity to adduce evidence is rejected by order dated 22.6.2017.
8 The executing Court committed a grave error in not deciding the application seeking opportunity of adducing evidence while dismissing the objections. There was no propriety in considering the application for grant of opportunity to adduce evidence after having already rejected the objections. That apart, considering the nature of the objections several contentious factual issues would arise for adjudication. It would be a gross miscarriage of justice, if the judgments impugned are permitted to hold the field.
::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:09:16 ::: 6 9 It must therefore be held that the appellants has made out a case for remitting the matter to the executing Court for fresh decision after giving adequate opportunity to the objectors to lead evidence and the substantial questions of law are answered accordingly.
10 The order dated 8.2.2016 passed by the 7th Joint Civil Judge, Junior Division, Akola in Regular Darkhast 290 of 2012 and the judgment and decree dated 28.4.2017 in Regular Civil Appeal 28 of 2016 passed by the Principal District Judge, Akola are set aside and the execution proceedings are remitted to the executing Court for fresh decision after giving adequate opportunity to the objectors to adduce evidence and needless to say to the decree holders to adduce evidence in rebuttal. Every contention raised in this appeal and in rebuttal is kept expressly open.
11 The executing Court shall dispose of the execution proceedings within four months.
12 The appeal is allowed in the aforestated terms. ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:09:16 ::: 7
JUDGE RSB ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:09:16 :::