Bombay High Court
Nagesh S/O Chandrabhan Meshram And ... vs Ashok S/O Wasudeo Titare And 2 Others on 6 October, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
397-J-CRA-165-17 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.165 OF 2017
1. Nagesh s/o Chandrabhan Meshram,
Aged about 26 years, Occ. Agriculturist,
R/o At Post Pachkhedi (Ga),
Tah. Kuhi, Dist. Nagpur 441210
2. Ishwar s/o Lahanu Rohankar
Aged about 48 years, Occ. Agriculturist,
R/o At Post Pachkhedi Gothangaon (Ga),
Tah. Kuhi, Dist. Nagpur 441210 ... Applicants.
-vs-
1. Ashok s/o Wasudeo Titare,
Aged about 45 years, Occ. Private Service,
R/o Pachgaon, Tah. Kuhi, Dist. Nagpur.
2. Chandrakala w/o Suresh Humne,
Aged about 43 years, Occ. Household,
R/o Plot No.15 Behind the house of
Waman Kite, Chandra Nagar,
Post Bhagwan Nagar, Nagpur,
3. Pandurang s/o Hari Meshram (Dead)
Through L.R Parvatibai w/o Pandurang
Meshram, Aged about 65, Occ. Farmar,
R/o Pachkhedi, Tah. Kuhi, Dist. Nagpur. ... Respondents.
Shri Tejas Deshpande, Advocate for applicants.
Shri Abhishek Shukla, Advocate for respondent No.1.
Shri A. B. Raje, Advocate for respondent No.2.
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397-J-CRA-165-17 2/6
CORAM : A. S. CHANDURKAR, J.
DATE : October 06, 2018.
Oral Judgment :
The applicants are aggrieved by the order passed by the Executing Court below Exhibit-42 dated 07/11/2017 whereby the objections sought to be raised by the applicants under Section 47 of the Code of Civil Procedure, 1908 (for short, the Code) have been rejected.
2. The non-applicant No.1 is the original plaintiff who had filed suit for specific performance of agreement dated 12/04/2005 along with further reliefs of declaration and permanent injunction. In that suit the non- applicant Nos.2 and 3 were the defendants. That suit was decreed on 07/11/2012 and the defendant No.1 was directed to execute the sale-deed of the suit property in favour of the plaintiff. The decree-holder filed execution proceedings and in those proceedings when it was found that the present applicants were in occupation of the suit property, they were sought to be joined as judgment-debtor Nos.2 and 3 by filing application below Exhibit-20. That application was allowed by the Executing Court and thereafter the decree-holder moved an application under provisions of Order XXI Rule 35 of the Code seeking warrant of possession. The same was issued on 16/02/2016. The warrant was then sought to be executed on 01/10/2016 and pursuant thereto the present applicants raised an objection ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 00:37:48 ::: 397-J-CRA-165-17 3/6 under Section 47 of the Code. According to the applicants they were bonafide purchasers of the suit property and that in the suit as filed by the decree-holder there was a prayer simplicitor for grant of specific performance but there was no prayer for delivery of possession. Thus according to the applicants the decree in question could not be executed. Reply was filed to the said objection stating therein that since the property was transferred during pendency of the suit, no right accrued with the objectors. By the impugned order the trial Court rejected the said application.
3. Shri T. Deshpande, learned counsel for the applicants submitted that the executing Court wrongly held that the provisions of Rules 98 and 100 of Order XXI of the Code were not applicable. Reference was made by the executing Court to provisions of Order XXI Rule 102 which infact stood deleted by the State amendment of 1983. The other objections raised with regard to absence of any decree for possession which was sought to be executed had not been considered by the executing Court. It was thus submitted that since the applicants were in actual possession of the suit property a proper adjudication of the objections as raised was necessary.
4. Shri A. Shukla, learned counsel for the non-applicant No.1- decree-holder supported the impugned order. According to him the ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 00:37:48 ::: 397-J-CRA-165-17 4/6 applicants being transferees pendente lite they were not entitled to raise objection in the execution proceedings. They were bound by the decree for specific performance. He further submitted that as the sale-deed now stands executed in favour of the original plaintiff pursuant to the decree as passed, the objection as raised to the nature of the decree sought to be executed has been rightly turned down by the executing Court. In any event it was submitted that in view of provisions of Section 22 of the Specific Relief Act, 1963 the relief of possession could be granted at any stage of proceedings.
5. I have heard the learned counsel for the parties. Perusal of the application below Exhibit-42 indicates that the objection raised by the applicants was to the fact that they being bonafide purchasers of the suit property the decree could not be executed against them. Another objection raised was in respect of the decree being simplicitor for specific performance without any relief being granted for delivery of possession. The executing Court in paragraph 2 of its order has referred to provisions of Order XXI Rule 102 of the Code and has thereafter held that the objection as raised by the applicant was not tenable as provisions of Rules 98 and 100 of the Code were not applicable to the applicants/objectors to the execution of the decree.
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6. It is not in dispute that the suit as filed was for specific performance but there was no prayer made for delivery of possession of the suit property. The objections raised in that regard under Section 47 of the Code was therefore required to be adjudicated by the executing Court. Though the Court has referred to that objection in the first paragraph of its order, there is no consideration of said aspect while passing the impugned order. Since the applicants are in possession of the suit property, adjudication of that objection in accordance with law is therefore found necessary. On this short ground it is found that the application below Exhibit-46 requires reconsideration by deciding all the objections as raised.
7. Though the learned counsel for the parties have referred to various decisions in support of their respective contentions, at this stage I do not find it necessary to adjudicate on the other contentions as urged and instead it is found that fresh consideration of the application below Exhibit- 42 would serve the ends of justice.
Shri A. Shukla, learned counsel for the non-applicant No.1 at this stage states that the decree-holder desires to move the trial Court by moving an application under Section 22 of the Specific Relief Act. If such application is moved, same shall be decided on its own merits and in accordance with law. Such application if filed shall be adjudicated first after which the objections below Exhibit-42 shall be decided.
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8. Accordingly the following order is passed :
i) The order passed below Exhibit-42 dated 07/11/2017 is set aside.
ii) The proceedings are remanded to the executing Court which shall decide the application below Exhibit-42 afresh and in accordance with law. Said application shall be decided expeditiously within a period of eight weeks from the first date of appearance. The parties shall appear before the executing Court on 29/10/2018.
iii) It is clarified that all points raised by the parties shall be considered and adjudicated upon by the executing Court.
Needless to state that it is open for the decree-holder to take such steps as are permissible by law for executing the decree in question.
iv) Civil Revision Application is allowed in aforesaid terms and disposed of.
JUDGE Asmita ::: Uploaded on - 09/10/2018 ::: Downloaded on - 10/10/2018 00:37:48 :::