Bombay High Court
Dr. Prakash S/O Mathuradas Gupta And ... vs Devrao S/O Santoshrao Bhongade And ... on 3 May, 2016
Author: S. B. Shukre
Bench: S. B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1182 OF 2016
1. Dr. Prakash s/o Mathuradas Gupta
aged about 63 yrs., Occp. Dorctor,
r/o Ashirwad Hospital, Buldhana.
2. Ram s/o Govind Saoji,
aged about 55 yrs.,
occp. Service, r/o Sanchet Apartment,
1, Buty Layout, Dharampeth, Nagpur.
3. Prashant s/o Govind Saoji
aged about 52 yrs., occp. Agriculturist,
r/o Saoji Galli, Mehkar,
Distt. Buldhana. :: .... PETITIONERS
// VERSUS //
1. Devrao s/o Santoshrao Bhongade,
aged about 70 yrs., Occp. Retired,
r/o 138, Chhatrapati Nagar, Nagpur.
2. Vinayak s/o Santoshrao Bhongade,
aged about 60 yrs., Occp. Farmer.
3. Anandrao Santoshrao Bhongade
aged about 57 yrs., Occp. Farmer.
4. Vithalrao Santoshrao Bhongade
aged about 55 yrs., Occp. Farmer,
Nos. 2 to 4 r/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
5. Hifzul Kabir s/o Hifzul Karim
aged about 60 yrs., Occp. Business,
r/o 8, Lokhande Layout, Lumbini Nagar,
Mankapur, Nagpur.
6. Amol Bhalchandra Joshi
aged about 22 yrs.,
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r/o 148, Mhalgi Nagar, Nagpur,
7. Smt. Shaileja wd/o Bhalchandra Joshi,
aged about 55 yrs., r/o Zenda Chowk,
Mahal, Nagpur.
8. Shilpa Bhalchandra Joshi
aged about 23 yrs.,
r/o Zenda Chowk, Mahal, Nagpur,
9. Suresh Gajananrao Wakhare
aged about 48 yrs., r/o Mehandibagh road,
Maskasath, Itwari, Nagpur,
10.
Bakaram Domaji Thote,
aged adult, r/o Nagoba Galli,
Mahal, Nagpur.
11. Smt. Naima Kishwar w/o Abdul Karim,
aged about 59 yrs., r/o 249-A,
Kidwai Road, Mominpura, Nagpur.
12. Naimul Karim Zahid,
aged about 33 yrs., occp. Business,
r/o 249-A, Kidwai Road, Mominpura, Nagpur.
13. Mehroozul Karim Arif,
aged about 31 yrs.,
r/o 249-A, Kidwai Road, Mominpura, Nagpur.
14. Smt. Nasim Ahmed wd/o Syed Shafizue Ahmed,
aged Adult, r/o Behind Corporation School,
New Colony, Plot No. 161/A, Anant Nagar, Nagpur.
15. Nashir Asam Makbul Ahmed Bakshi
aged about 56 yrs., r/o Zafar Nagar, Nagpur.
16. Smt. Meena wd/o Gopal Saini,
aged about 56 yrs., Occp. Business,
r/o Loharpura, Behind Petrol Pump,
Central Avenue, Nagpur.
17. Amit s/o Gopal Saini,
aged 27 yrs., Occp. Non known,
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r/o Loharpura, Behind Petrol Pump,
Central Avenue, Nagpur.
18. Atul s/o Gopal Saini
aged about 25 yrs., r/o Loharpura,
Behind Petrol Pump, Central Avenue,
Nagpur.
19. Chetan Singh s/o Shatrughan Singh Rathod
aged about 30 yrs., r/o Near Fruit Market,
Gokulpeth, Nagpur.
20. Sanjay Singh s/o Shatrughan Singh Rathod,
aged about 30 yrs., r/o Near Fruit Market,
Gokulpeth, Nagpur.
21. Vinaykumar Balkrishna Dewale,
aged adult, r/o Gokulpeth, Nagpur.
22. Tulsiram s/o Yeshwantrao Verulkar
aged about 48 yrs., Occp. Service,
r/o Ramji's Wadi, Near Model Mill Chowk,
Ganeshpeth, Nagpur.
Respondent Nos. 6 to 9, 11 to 13, 15 to 20
and 22, through their Power of Attorney Shri Shravan
Ramavtar Prasad, aged about 52 yrs., Occp. Business,
r/o East High Court, Near V.H.B. Colony,
Kashipura, Ramdaspeth,
Nagpur-10. .... RESPONDENTS
______________________________________________________________
Shri S. P. Kshirsagar, Advocate for the petitioners.
Shri C. S. Kaptan, Senior Advocate with Advocate Shri Aadil J. Mirza,
for respondent No.5.
______________________________________________________________
CORAM : S. B. SHUKRE, J.
DATED : 03 MAY, 2016
ORAL JUDGMENT :
Heard.
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3. Learned Senior Counsel Shri Kaptan waives service for respondent No.5-Caveator.
4. There is no need to issue notice to respondent Nos. 1 to 4 and 6 to 22 as they are not contesting parties.
5. Rule, made returnable forthwith. Heard finally by consent.
6. The main grievance of the petitioners is that several findings have been recorded against them by various Courts even though they were not parties in those proceedings. Learned Counsel for the petitioners submits that now when the objection was raised on behalf of the petitioners that doctrine of lis pendens applied to the facts of the present case and that they had acquired their right, title and interest in the suit property by virtue of a valid sale deed entered in between them and Deorao and Vinayak, the sons of Santoshrao, the objection came to be rejected on the ground that the issue was finally settled and that the petitioners could not be said to be bona fide purchasers. He submits that it was expected of the executing Court to at least make an inquiry as contemplated under the provisions of Rules 97 to 109 of Order 21 of the Civil Procedure Code, but same has not been done. Therefore, according to him, the impugned order is illegal.
Learned Counsel for the petitioners further submits that because of the ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:45:52 ::: wp1182.16.odt 5/6 impugned order, the petitioners have been rendered remedyless to redress their grievance.
7. Learned Senior Counsel for respondent No.5 submits that the issue has been concluded finally by the Hon'ble Apex Court when it dismissed the Special Leave Petition filed against the judgment of this Court delivered on 26/4/1993 in First Appeal No.790 of 1991. He submits that when it was held that the partition was merely an eye wash, as observed in paragraph-19 of the judgment, and sons of Santoshrao, one of whom was Devrao, were never the co-owners of the suit property, the subsequent sale-deed made on the basis of such partition by the sons could not be valid and so the question of application of doctrine of lis pendens would not arise in this case. He submits, learned Civil Judge, Senior Division has, therefore, rightly rejected the objection. He also submits that no inquiry is required as the documents placed on record themselves were sufficient to effectively decide the objection.
8. Upon going through the impugned order and considering the arguments canvassed on behalf of the petitioners and respondent No.5, I find that the order impugned here cannot be said to have been passed illegally or in ignorance of settled principles of law. The learned Civil Judge, Senior Division has taken into consideration all the orders passed by various Courts including the Hon'ble Apex Court and ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:45:52 ::: wp1182.16.odt 6/6 concluded that so far as the execution of the decree is concerned, the petitioners cannot be said to be bona fide purchasers and as such they would have no right to raise objection to the execution of the decree and rightly so. When there are available on record various judgments and orders of superior Courts throwing light on the material issues involved and not only that, telling emphatically that those issues now have attained finality, the only inquiry required was to consider those judgments and orders. This is what the learned Civil Judge has done and so no other inquiry was necessary. If the petitioners have any grievance regarding they being not the party to the proceedings before the various Courts and the findings recorded in those proceedings in their absence, the petitioners would have the option of such independent remedy as is available in law, which they may pursue.
But, so far as the execution of the present decree is concerned, the petitioners cannot intervene and seek to scuttle the execution of the decree or otherwise, it may amount to going behind the decree, which is not permissible. I find no merit in the writ petition and it deserves to be dismissed.
Writ petition is dismissed. No costs.
Rule is discharged.
JUDGE wwl ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:45:52 :::