Bombay High Court
Sadashiv Bhima Mahar Died Thr. Lrs ... vs Giridhar Malhari Choudhari And Ors on 16 January, 2026
2026:BHC-AUG:1883
1 cra 224.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 224 OF 2018
Sadashiv Bhila Mahar
Since deceased through his L.Rs.
1A Laxmibai Sadashiv Nikumbh
and others .. Applicants
Versus
1. Girdhar Mlhari Choudhari (Wadar)
Since deceased through his L.Rs.
1-A Shamrao Girdhari Choudhari (Wadar)
and others .. Respondents
Shri S. V. Natu, Advocate for the Applicants.
Shri C. C. Deshpande, Advocate for the Respondents.
CORAM : SHAILESH P. BRAHME, J.
DATE : 16TH JANUARY, 2026.
FINAL ORDER :
. Heard both sides finally with their consent.
2. Applicants are taking exception to the order dated
27.09.1999 passed below Exhibit 105 in Special Darkhast No. 04
of 1989 (New Spl. D. No. 04 of 1998). They are decree holders of
Spl. C. S. No. 09 of 1973. The respondents are judgment debtors,
who objected Spl. D. No. 04 of 1989 being not maintainable.
3. The controversy pertains to land gut No. 30 admeasuring
11 Acres 32 Guntha situated at Pimpri, Tq. Shahada. Dagdu
2 cra 224.18
Kala Mahar, grandfather of the applicants was the original
owner. He and his son Bhila had joint Hindu family. The suit
land was mortgaged with the respondents. It was the case of
Bhila that agreement to sale was fraudulently executed on
06.03.1967, hence Spl. C. S. No. 49 of 1968 was filed for
declaration that agreement is bad in law, possession and
redemption of mortgage. It was decreed on 31.01.1970 and
original plaintiff was directed to repay Rs. 7,000/- upto
31.03.1970. The possession was also directed to be handed over.
It was not complied with.
4. Applicants preferred Spl. C. S. No. 09 of 1973 seeking
extension of time to repay the amount and for possession. It was
contested by the respondents. Trial Court decreed the suit on
20.08.1975. Being aggrieved, respondents preferred First Appeal
No. 698 of 1975. It was dismissed in default on 11.04.1985. The
decree passed in the said suit was sought to be executed by Spl.
D. No. 04 of 1989 (New No. 04 of 1998).
5. The respondents raised objection vide application Exhibit
No. 105 U/Sec. 47 of the Code of Civil Procedure (for the sake of
brevity and convenience hereinafter referred as to the "C.P.C.")
on the ground of res-judicata and having rendered decree
unexecutable for not bringing legal heirs of one of the judgment
debtor - Shankar on record. Application was contested by the
applicants. By the impugned order it was allowed, resulting into
dismissal of the execution petition.
3 cra 224.18
6. Learned counsel for the applicants submits that the
Executing Court committed patent illegality in passing
impugned order on the ground that decree was nullity. The
Executing Court traveled beyond the decree. It is contended that
applicant Nos. 6 to 9 were not party to original Spl. C. S. No. 49
of 1968, but that would not render the decree passed in
subsequent suit as nullity. Similarly the decree cannot be
rendered unexecutable for not bringing legal heirs of Shankar on
record.
7. Per contra learned counsel for the respondents supports
impugned order mainly on the ground that there were lapses on
the part of the applicants and second suit was not maintainable.
It is submitted that the decree is unexecutable because applicant
Nos. 6 to 9 were not parties to the earlier suit and applicants
failed to bring legal heirs of deceased Shankar on record.
8. I have considered rival submissions of the parties. Spl. C.
S. No. 49 of 1968 was decreed by the Trial Court and it was not
challenged by the respondents. Circumstances have been
narrated in the plaint of Spl. C. S. No. 09 of 1973 as to why the
amount of Rs. 7,000/- could not be deposited. Applicant Nos. 6 to
9 are daughters of Bhila. They are not claiming any independent
or conflicting interest in the subject matter.
9. The executing Court cannot travel beyond the decree is
4 cra 224.18
well settled principle of law. Applicants have rightly referred to
decision of the Supreme Court in the matter of Harpal Singh Vs.
Ashok Kumar and another reported in (2018) 11 SCC 113. I have gone
through para Nos. 6 to 8 of the judgment, which is rightly cited
by the applicants. In the present matter objection founded on
principles of res-judicata cannot be pressed into service before
the Executing Court. The objection is not pertaining to the lack
of inherent jurisdiction.
10. The interest of the plaintiffs in both the suits is common,
though the applicant Nos. 6 to 9 were not party in the first suit.
They are not precluded from filing second suit along with other
family members. Their claim is not inconsistent with earlier
plaintiffs. No prejudice can be said to have been caused to the
respondents. The second suit is in the form of execution of the
earlier decree. It cannot be treated to be unexecutable.
11. The findings of the executing court that second suit is
barred by U/Sec. 47 of the C. P. C. is perverse. It is over looked
that First Appeal No. 698 of 1975 was not being prosecuted
diligently and it was dismissed in default. The decree passed on
20.08.1975 in Spl. C. S. No. 9 of 1973 attained finality. The
objections raised by the respondents vide application Exhibit 105
are trivial in nature and should have been over ruled.
12. In both suits defendant was Girdhar Malhari and after his
demise his children and wife were brought on record. It was not
5 cra 224.18
necessary to bring heirs of deceased Shankar on record, who
happened to be one of the sons of the judgment debtor Girdhar.
The execution proceeding does not get abated for not bringing
heirs of one of the judgment debtor on record. For this purpose
reliance is placed on the judgment of the Supreme Court in the
matter of V. Uthirapathi Vs. Ashrab Ali reported in (1998) 3 SCC 148. I
have gone through paragraph Nos. 11 to 15 of the judgment. The
findings in respect of issue No. 1 recorded in the impugned order
are unsustainable.
13. For the reasons stated above, I pass following order.
ORDER
A. The civil revision application is allowed.
B. Impugned order dated 27.09.1999 passed below Exhibit 105 and 108 in Spl. D. No. 04 of 1989 (New Spl. D. No. 04 of 1998) is quashed and set aside.
C. Special Darkhast No. 04 of 1989 (New Spl. D. No. 04 of 1998) shall stand restored to its original position.
D. The Executing Court is requested to conclude the proceedings expeditiously.
[ SHAILESH P. BRAHME J. ] bsb/Jan. 26