Bombay High Court
Daudkhan S/O Sultan Khan And Others vs Mohammad Khan S/O Ahmed Khan And Others on 23 January, 2020
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
1 22-SA-8-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.08 OF 2020
DAUDKHAN S/O SULTAN KHAN AND OTHERS
Vrs.
MOHAMMAD KHAN S/O AHMED KHAN AND OTHERS
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Shri J. B. Kasat, Advocate for appellants.
CORAM:- AVINASH G. GHAROTE, J.
DATED :- 23/01/2020.
Heard Shri Kasat, learned counsel for the appellants.
It is contended that in RCS No.222/1963, Rasulkha Vrs. Habibkhan, a money decree was passed on 18/11/1963, which was put to execution in R.D. No.371/65. The present appellants are the legal heirs of Sultan Khan s/o Noor Khan who was the auction purchaser in Court auction held on 24/04/1966 of the suit property of Habibkhan, which was attached and sold in Court auction. The property was occupied by tenants. The sale certificate was issued on 06/07/1966.
Sultan Khan s/o Noor Khan is thereafter reported to have filed proceedings for termination of tenancy which having been granted a suit for ejectment was filed, which also came to be decreed, which decree was put in execution, in which proceedings, an application under Order 21 Rule 97 of the Code of Civil Procedure ::: Uploaded on - 03/02/2020 ::: Downloaded on - 11/06/2020 02:54:09 ::: 2 22-SA-8-20.odt came to be filed, which came to be rejected on 20/10/1973.
Shri Kasat, learned counsel for the appellants is unable to make a statement as to what happened to the execution proceedings thereafter.
He, however, submits that a fresh suit for possession bearing R.C.S. No.59/1978 came to be filed by Sultan Khan against the occupants of the suit property and the persons claiming share therein, which suit however, came to be dismissed by judgment and decree dated 11/02/2009 passed by the Joint Civil Judge, Junior Division, Akola. One of the grounds for dismissing the suit was that since the application under Order 21 Rule 97 of the Code of Civil Procedure was rejected on the ground of limitation on 20/10/1973, the R.C.S.No.59/1978 would not be maintainable.
Shri Kasat, learned counsel for the appellants invites my attention to the findings in this regard in para 47 page 93 of the judgment of the Trial Court. The learned Appellate Court has also concurred with a view that once the application under Order 21 Rule 97 of the Code of Civil Procedure filed, execution proceedings came to be dismissed, filing of separate suit was not permissible.
Issue notice to the respondents on the following substantial question of law:-
"Whether the dismissal of an application under Order 21 Rule 97 of the Code of Civil Procedure as filed by an obstructionist in execution proceedings for execution of decree for eviction, would bar the filing of a separate suit for possession by the plaintiff ?::: Uploaded on - 03/02/2020 ::: Downloaded on - 11/06/2020 02:54:09 :::
3 22-SA-8-20.odt Issue notice to the respondents, returnable on 20/02/2020.
R & P be called.
JUDGE Choulwar ::: Uploaded on - 03/02/2020 ::: Downloaded on - 11/06/2020 02:54:09 :::