1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.990 OF 2010
JAYAWANT DATTATRAYA MURTADAK PETITIONER
VERSUS
NAMDEO DADA KOLHE AND ANR RESPONDENT.
Mr. K.D. Bade Patil, advocate for the petitioner.
CORAM : S. B. DESHMUKH, J.
ig DATE : 9th FEBRUARY, 2010.
PER COURT :-
1. Heard counsel for the petitioner. Petitioner is the judgment debtor in
Regular Darkhast No.48/2008 pending before the learned Civil Judge (J.D.)
Sangamner, District Ahmednagar (herein after referred to as ‘executing court’).
The petitioner has filed an application under section 47 of the Code of Civil
Procedure in R.D.No.48/2008, filed by the respondents/decree holder. Copy of the
application filed by the present petitioner annexure ‘F’ is on record. Few of the
facts or proceeding, I am listing herein below :-
a. Respondents/decree holder filed RCS No.456/1986 in the court of
learned Civil Judge J.D. Sangamner for specific performance of Contract. Copy of
the judgment delivered by the learned 2nd Jt. Civil Judge J.D. Sangamner, on
17.03.1993 is on record. It appears from the operative part of the judgment that
suit for specific performance of contract was dismissed with costs by the trial court.
The petitioner/defendant was directed to refund amount of Rs.15,000/- in lump
::: Downloaded on – 09/06/2013 15:35:35 :::
2
sum with and interest @ 6% p.a.on it to the plaintiff within one month from the
date of the judgment. Rate of interest 6% was directed to be calculated from the
date of the suit till full realization of the decretal amount.
b) Judgment and decree passed by the trial court dated 17.03.1993 in
RCS No.465/1986 was challenged by the present petitioner/defendant by filing RCA
No.309/2000 (old RCA No.234/91). This appeal after hearing the parties, was
decided by the First Appellate Court. Copy of the judgment delivered by first
appellate court in this appeal is on record, annexure B. From the operative part of
this judgment of the first appellate court, it is manifest that judgment and decree
passed by the trial court was reversed. First Appellate Court directed the
defendant to execute sale deed in favour of the plaintiffs in respect of suit property
i.e. land gat No. 97, more particularly described in paragraph No.1 of the plaint
after accepting amount of Rs.10,000/- which is deposited in the court and obtained
the permission from the competent authority for execution of the sale deed.
Judgment further says that if defendants failed to execute sale deed in favour of
the plaintiffs, then commissioner be appointed and through Commissioner, sale
deed of the suit land be executed in favour of the plaintiffs. Costs were directed to
be paid by the respondent in appeal to the appellants. This was the judgment and
decree passed by the first appellate court on July 4, 2002.
c) Aggrieved petitioner/defendant by the judgment and decree passed
by the first appellate court, in appeal No.309/2000 dated 04.07.2002, challenged
the same by filing Second Appeal No.292/2002 in the High Court along with Civil
Application No. 5225/2002. Annexure ‘C’ is copy of the order passed by the
::: Downloaded on – 09/06/2013 15:35:35 :::
3
learned Single Judge of this Court dated July 26, 2007. Learned Single Judge of this
Court dismissed the second appeal with no order as to costs, disposed of civil
application directing the remittance of the record and proceeding to the trial court.
d) The successful plaintiffs filed R.D. No.48/2008 in executing court
seeking execution of decree. Annexure ‘D’ is the copy of said Darkhast on record.
e) From the order passed by executing court on 20.11.2009 it is clear
that review application before High Court bearing No.11826/2009 in S.A. No.
292/2002, was pending for this reason progress of the case i.e. execution petition
was stayed till decision of High court. After this order, I have also noticed another
order passed by the executing court on 04.01.2010 below exh.1 on R.D.48/2008.
This order clarifies that review application seeking review of the order passed in
S.A.No.292/2002 by the High court was dismissed, rule was discharged. Stay
granted on 17.11.2009 was also vacated by the High Court on 01.12.2009 after
dismissal of the review petition filed by the present petitioner J.D. Executing Court,
therefore, passed an order that case to proceed further, as per law meaning
thereby execution petition to proceed further. I have also considered order passed
by the executing court on 22.01.2010 below Exh.1 (page 52). The executing court
refers the earlier order below Exh.31, 24, 35, 36 and 51 and further ordered
issuance of writ to Commissioner to execute sale deed of the suit property as per
decree of RCA No.309/2000 on payment of process fees.
f) Annexure ‘E’ is copy of draft sale deed, tobe registered with the
authority competent i.e. Sub Registrar, by the Commissioner, in view of the decree
::: Downloaded on – 09/06/2013 15:35:35 :::
4
passed by the First Appellate Court. The learned counsel for the petitioner has
pointed out paragraph No.4 of the draft sale deed (page 55) wherein, it has been
mentioned that sale deed is executed by the Court Commissioner and possession
of the property is also delivered. Thereafter, further I have noticed the order
passed by the learned trial court page 56 dated 22.01.2010. By this order, trial
court/executing court heard the parties more specifically grievance raised by the
present petitioner/J.D that draft sale deed should not be accepted.
It is not in dispute that copy of the sale deed which is on record,
annexure ‘E’ is not the sale deed, but is a draft sale deed produced before the
court.
Executing court heard present petitioner / J.D. on this draft sale deed,
objection was raised by the present petitioner that draft sale deed should not be
accepted. Learned judge, after referring his earlier order below Exh. 24, hold that
as mentioned in the order passed below Exh.24, no such petition as contended by
the present petitioner is pending before Honourable High Court or Apex Court.
Executing court therefore did not find substance in the objection raised by the J.D.
Exh.32. Draft sale deed filed by D.H. Exh.31 was therefore directed to be accepted
by the court by this order passed on 22.01.2010.
g) After order passed by executing court, accepting draft sale deed
dated 22.01.2010 in disputably, J.D/present petitioner filed an application
purporting to be an application under section 47 of the Code of Civil Procedure
annexure ‘F’ to this petition. The decree holder was called upon to file his reply.
His reply appears on the same application filed by the present petitioner/ J.D. It is
a hand written reply, probably filed by the Advocate appearing for decree holder
(page 61). In his reply, “decree holder has contended that application is devoid of
::: Downloaded on – 09/06/2013 15:35:35 :::
5
merit, Honourable court cannot go behind the decree. This court cannot sit in
appeal to decide validity of the decree as it is a finding by the High Court and
Supreme Court. Application be dismissed.”
h) Trial Court after hearing the parties passed an order on this
application under section 47 in trial court annexure ‘F’. In this, Court passed an
order rejecting said application. This application was at Exh. 51 in the trial court.
This order is passed on 22.01.2010.
2.
Learned counsel for the petitioner took me to the paragraph No.
18-19 of the Judgment of the Trial Court in RCS No.456/1986. From these two
paragraphs, he has pointed out admission of the plaintiffs that separate possession
receipt executed between him and defendant but same is not produced on record.
The court drew adverse inference against the plaintiffs. In paragraph No.19
categorically, Trial Court has observed that “Obviously plaintiff was never put in
possession of the suit property and it is the defendant who continued to be in
possession of it.” Counsel for the petitioner emphasized these two paragraphs in
support of his proposition that Judgment debtor/present petitioner was in actual
physical possession of the property and therefore, there is no question of handing
the possession, there is no decree passed by the competent civil court for delivery
of possession by the present petitioner / J.D. Despite this fact, counsel for the
petitioner strongly contended that copy of the draft sale deed on record annexure
‘E’ is illegal, makes mention that possession of the property is given by the court
commissioner. He submitted that this draft sale deed is now accepted by the
learned Judge by the order dated 22.01.2010 below application under section 47
::: Downloaded on – 09/06/2013 15:35:35 :::
6
annexure ‘F’ . He has also invited my attention to all grounds raised in application
under section 47. Copy of which is on record.
3. Principal two submissions are addressed to this Court. One that,
draft sale deed makes mention of delivery of possession and has been accepted by
the trial court illegally, despite the fact that there is no decree passed. Another
submission of the counsel for the petitioner is pertaining to recession of contract.
4. The trial court in its order below Exh. 51 has observed that Judgment
debtor i.e. present petitioner has not mentioned the date on which he has
deposited amount of earnest money and interest in the court or date on which
decree holder has withdrawn the said from the court. Trial court therefore, on this
point arrived at conclusion that there is no substance in this submission that he
has deposited amount of earnest money with interest. On the point of alleged
permission to be obtained, executing court recorded a finding that appellate Court
had not directed the plaintiff/decree holder to obtain permission of the competent
authority to get execution of the sale deed. It is pertinent to note that Appellate
court, on the contrary, has observed that on the other hand, it had directed the
defendant/ Judgment Debtor to obtain permission of competent authority by
accepting the balance amount of consideration of Rs.10,000/- which is already
deposited by the plaintiff. Executing court therefore hold that there is no
substance in this submission also of the J.D. / petitioner. Mentioning of delivery of
possession in the draft sale deed also has been considered by the executing court.
It is a categorical observation of the executing court in the order impugned that
decree holder has also not claimed possession in this execution or there is no
::: Downloaded on – 09/06/2013 15:35:35 :::
7
direction from appellate court to deliver possession of the property to the Decree
Holder. The executing court arrived at a conclusion that application under section
47 of C.P.C. filed by the petitioner is not maintainable in view of the fact that there
was no response to the notice under Order 21 Rule 22 of Code of Civil Procedure,
served to the J.D./present petitioner. Executing court found it a belated attempt
however dealt with the application on merits and rejected the same.
5. The procedural code i.e. Code of Civil Procedure contains around 52
Orders in the First Schedule. Biggest is the Order XXI comprising around 106 rules.
To obtain a decree from civil court successfully is itself is a task for the plaintiff-
litigant. If plaintiff litigant succeeds in his attempt, it is another aspect of the
matter for him, if he is drived up to Honourable Supreme Court to substantiate his
contention at all levels i.e. at the level of First Appellate Court, Second Appellate
Court and ultimately if SLP is filed before Honourable Supreme Court, he has no
option. The plaintiff-litigant even if succeeds to support the decree passed by the
Civil Court at the first instance, uptil the Honourable Supreme Court, his ordeal is
not over. The plaintiff thereafter is required to approach to civil court to seek
execution of the decree by filing Execution petition. This point of time comes in the
life of plaintiff-litigant after many years, figure may differ from case to case. In the
case on hand, the respondent decree holder has undergone this ordeal.
6. Order XXI Rule 34 is relevant in the case on hand. In view of
undisputed fact that there is a decree passed by the First Appellate Court for
specific performance of contract. Order 21 Rule 34 comprises around 6 sub rules.
In the case on hand, we are at the stage of Order XXI Rule 34 Sub rule 4.
::: Downloaded on – 09/06/2013 15:35:35 :::
8
Indisputably and as I have recorded in foregoing paragraphs of this order draft sale
deed is placed on record, copy thereof is served to the petitioner/judgment debtor,
his objection is recorded, rejected by the executing court and draft sale deed is
accepted. Sale deed conveys title of the subject matter i.e. movable/immovable
property from seller to purchaser. In my view, there is no perversity in the order
passed by the executing court.
7. Executing court in its order has observed that the application under
section 47 is filed at belated stage. Record shows that at every level Judgment
Debtor tried to file proceeding to delay the execution of the decree passed by the
First Appellate Court. In my view, no case for invocation of extra ordinary
jurisdiction under Article 226, 227 is established.
8. Writ petition stands dismissed in limine. No order as to costs.
Executing court shall proceed with the execution in accordance with the provisions
of law.
( S. B. DESHMUKH )
JUDGE.
…..
aaa/990.10
::: Downloaded on – 09/06/2013 15:35:35 :::