Bombay High Court
Abdul Khalil S/O. Sk. Karim vs Syed Mustaque Syed Karamat Ali on 30 January, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
J-ao37.16.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER No.37 OF 2016
Abdul Khalil s/o. Sk. Karim,
Aged about 62 years,
Occupation : Business,
R/o. Vidarbha Housing Society,
Bajoriya Nagar, Yavatmal : APPELLANT
...VERSUS...
Syed Mustaque Syed Karamat Ali,
Aged abut 52 years,
Occupation : Mechanic,
R/o. Sharda Chowk, Yavatmal,
Tq. & Distt. Yavatmal. : RESPONDENT
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Shri A.S. Dhore, Advocate for the Appellant
Ms. Sharma h/f. Shri S.V. Purohit, Advocate for the Respondent.
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CORAM : A.S. CHANDURKAR, J.
th
DATE : 30
JANUARY, 2017.
ORAL JUDGMENT :
1. In view of notice for final disposal issued, the appeal is heard finally with the consent of learned counsel for the parties.
2. The appellant who is the decree holder in a suit for possession is aggrieved by the order passed by the appellate Court in the proceedings under Order XXI Rule 98 of the Code of Civil Procedure, ::: Uploaded on - 03/02/2017 ::: Downloaded on - 04/02/2017 00:35:08 ::: J-ao37.16.odt 2/6 1908, whereby the appellate Court while allowing the appeal preferred by the respondent has remanded the proceedings for deciding the objections raised by the respondent in the execution proceedings afresh.
3. The facts relevant for adjudicating the present proceedings are as under :
The appellant as the landlord of one Karamat Ali had terminated his tenancy and had initiated proceedings for his ejectment.
After obtaining permission from the rent controller suit for eviction came to be filed. The suit was decreed and the appeal filed by Karamat Ali though was partly allowed, the decree for possession was maintained.
The decree for eviction was confirmed in Writ Petition No.361/2012.
The decree holder thereafter initiated proceedings for executing the decree. In those proceedings the respondent who is the legal heir of Karamat Ali raised an objection by filing application below Exh.-78. The executing Court by order dated 19.9.2015 rejected the said objection holding the same to be without any substance. The respondent thereafter challenged this order before the appellate Court and by impugned order the appellate Court allowed the miscellaneous appeal and after setting aside the order passed by the executing Court remanded the proceedings for deciding Exh.-78 afresh. Being aggrieved, the present appeal has been filed.
4. The learned counsel for the parties were heard on the ::: Uploaded on - 03/02/2017 ::: Downloaded on - 04/02/2017 00:35:08 ::: J-ao37.16.odt 3/6 following question of law :
Whether the objection raised by the respondent (who is legal heir of the original Judgment Debtor) to the execution of decree on the ground that the said property has been received by him in the partition from his father i.e. the original Judgment Debtor, requires a full fledged enquiry under Order XXI Rule 98 read with Rule 101 of the Civil Procedure Code ?
5. Shri A.S. Dhore, learned counsel for the appellant submitted that the decree for eviction of Karamat Ali had attained finality and the present objection raised by one of his sons was not tenable and it was only an attempt to frustrate execution of the decree. According to him, the grounds of objections raised below Exh.-78 were without any substance and the executing Court was justified in not entertaining the same by making a detailed inquiry. According to him, when frivolous or unwarranted objections are raised, it is not necessary for the executing Court to hold a detailed inquiry as held in the case of Jagdish s/o.
Motilal Joshi vs. Chandrapal s/o. Tulsiram Bhola and another, reported in 2007 (1) of Mh.L.J. 402. The appellate Court was not justified in remanding the proceedings inasmuch as the respondent as legal heir of Karamat Ali was a petitioner in Writ Petition No.361/2012 and the decree for eviction was confirmed against him. He also relied upon the judgment in the case of Dhanaraji Baburam Yadav and another vs. Ramakant K. Dhanawade and others, reported in 2003(2) Mh.L.J. 58.
::: Uploaded on - 03/02/2017 ::: Downloaded on - 04/02/2017 00:35:08 ::: J-ao37.16.odt 4/66. Ms. Sharma, learned counsel for the respondent supported the impugned order and submitted that the appellate Court was justified in directing the executing Court to decide Exh.-78 afresh. It was submitted that pursuant to oral partition between Karamat Ali and the respondent, the respondent was doing separate business in the suit premises. The objection as raised to the execution of a decree was maintainable and the same was liable to be tried on its merits. Summary rejection of the objections as raised was not justified. It was, therefore, submitted that no interference was called for in the present appeal.
7. I have heard learned counsel for the parties at length and perused the documents on record. It is not in dispute that Summary Civil Suit No.32/2004 filed by the appellant against Karamat Ali for his eviction from the suit premises has been decreed and said decree has attained finality. It is further not in dispute that during the pendency of Writ Petition No.361/2012 filed by Karamat Ali challenging the decree for eviction, he expired on 9.5.2012. The present respondent along with other family members were brought on record of the said writ petition as legal heirs of Karamat Ali. This writ petition came to be dismissed on 16.8.2013. It is after the aforesaid decree became final that the respondent filed objection below Exh.-78. In this objection it has been pleaded that there was an oral partition between the family members and the respondent had got right therein to run his business. Such plea ::: Uploaded on - 03/02/2017 ::: Downloaded on - 04/02/2017 00:35:08 ::: J-ao37.16.odt 5/6 which was available during the lifetime of Karamat Ali was not raised by the respondent in his capacity as legal representative of said Karamat Ali.
The executing Court by holding that the decree passed was binding upon all the legal heirs of Karamat Ali rejected the objection.
8. In Jagdish Motilal Joshi (supra) it has been held that the nature and source of title of the objector is required to be disclosed where objection is raised in the execution proceedings. If on the basis of facts on record, it is found that the objector has no independent status then there is no reason to make a detailed inquiry as contemplated by Rule 101 of Order XXI of the Code. In Dhanaraji Baburam Yadav and another (supra), it has been held that the executing Court should not permit flimsy, false and vexatious pleas raised by the obstructionist.
9. Considering the fact that the decree for possession against Karamat Ali attained finality and the respondent as legal heir of Karamat Ali tried to challenge the same unsuccessfully, it is clear that the plea regarding right having accrued on account of oral partition appears to be flimsy and frivolous. The appellate Court without considering these aspects of the matter misdirected itself when it remanded the proceedings for fresh adjudication. The decree having attained finality, there was no question of fresh opportunity being given to the respondent to raise such grounds that were available in the earlier round of litigation.
::: Uploaded on - 03/02/2017 ::: Downloaded on - 04/02/2017 00:35:08 ::: J-ao37.16.odt 6/610. In view of aforesaid, the impugned order cannot be sustained, same is accordingly quashed and set aside. The order passed below Exh.-78 in Regular Darkhast No.4/2008 stands restored.
11. The appeal is allowed in the aforesaid terms. No costs.
JUDGE okMksns ::: Uploaded on - 03/02/2017 ::: Downloaded on - 04/02/2017 00:35:08 :::