Bombay High Court
Subhash Shankarrao Adwal Thr His ... vs Nivruti Genu Balwadkar Since Dec Thr His ... on 13 September, 2022
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
13-WP-7035-2022.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7035 OF 2022
Subhash S. Adwal
THR. His Constituted Attorney ..... Petitioner
Vs.
Nivruti Genu Balwadkar
Since Decd. Thr. His Legal Heirs ....Respondents
......
Mr. R.S. Kohli a/w. Mr. Anam Nafia i/by. C.K. Legal, Advocate for
the petitioner.
Ms. Divya Parab, Advocate for respondent no.1(e)(i).
CORAM: SANDEEP K. SHINDE, J.
TUESDAY, 13TH SEPTEMBER, 2022 P.C.
1. Await service report. Ms. Parab, waives notice on behalf of respondent no.1(e)(i).
2. Heard learned Counsel for the petitioner.
3. Petitioner-decreeholder filed Execution Application No.136/2011 to execute, consent decree passed in Regular Civil Suit No.986/2003 dated 12th February, 2009 seeking demarcation and fixing of boundaries of Survey No.34, Hissa Nos.1 to 12, Balewadi, Pune.
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13-WP-7035-2022.docx
4. The execution proceedings are pending for more than 12 years.
5. Thus, to expedite execution of the decree, petitioner had approached this Court in Writ Petition No.7271/2021. By order dated 26th February, 2022 this Court after perusing the report of Presiding Officer, directed to conclude execution proceedings expeditiously. Inspite of the order, the Executing Court, vide order dated 21st April, 2022 referred the parties for mediation under Section 89 of the Civil Procedure Code, overlooking the directions issued in Writ Petition No. 728/2022. Assuming the directions of this Court, were not brought to the notice of the Executing Court, while referring the parties for mediation, however, even after bringing the directions to the notice, the Executing Court, vide order dated 4 th May, 2022 maintained its order dated 21st April, 2022. Apparently, the order referring the parties to mediation, was in breach of directions issued by this Court in Writ Petition No. 7271/2022. This lapse on the part of Presiding Officer, cannot be ignored.
6. Be that as it may, learned Counsel appearing for the petitioner, has drawn my attention to the rojnama of the Executing Court, at page-118 of the petition. It shows, on 19 th April 2022, the Superintendent of Land Records, has submitted his report and the Rane 2/4 13-WP-7035-2022.docx same has been taken on record. The only exercise, which is to be done by the Executing Court, is to accept the Report, in as much as, the decree herein is a consent decree. However, the Executing Court, mechanically, adjourned the execution proceedings, although specific directions were issued by this Court, in view of the decision of Hon'ble Apex Court in the case of Rahul S. Shah Versus. Jinendra Kumar Gandhi and Others, 2021 SCC Online SC 341.
7. In consideration of these facts, the concerned Executing Court shall dispose off Execution Application No. 136/2011 on/or before 12th October, 2022.
8. Petitioner shall communicate this order to the concerned Executing Court.
9. Presiding Officer, who, by order dated 21 st April, 2022 had referred the parties to mediation, shall submit explanation as to why such a order was passed, inspite of clear directions issued by this Court vide order dated 26th February, 2022 in Writ Petition No. 7271/2021.
10. The Registrar (Judicial), shall forward copy of this order Rane 3/4 13-WP-7035-2022.docx to the Principal Judge, City Civil Court, Mumbai with request to forward copy of this order to the concerned Presiding Officer, whereafter concerned Presiding Officer shall file explanation in these proceedings, within three weeks through the proper channel.
11. All concerned to act on authenticated copy of this order.
12. List the petition to verify the compliance of the order NEETA SHAILESH dated 21st October, 2022.
SAWANT Digitally signed by NEETA SHAILESH (SANDEEP K. SHINDE J.) SAWANT Date: 2022.09.16 15:06:26 +0530 Rane 4/4