Back
High Court of Judicature at Bombay
R.M. SAVANT, J.
The Ratnakar Bank Limited
Versus
Usha Rajaram Nimbalkar & Others
Writ Petition No.7105 of 2012
Decided on : 10-05-2013
Order, rejecting application to correct description of property, filed in execution proceedings, passed on ground of delay and in view of Order VI, Rule 17 of Code, not sustainable. - Petitioner bank itself was permitted to purchase property mortgaged to it. Sale Certificate was issued shows boundaries of property. Said sale was preceded by auction notice in which also boundaries were mentioned. Parties were therefore very well aware as to property in respect of which application for possession has been filed by petitioner under Order XXI, Rule 95. Omission to mention boundaries of Western and Southern Side can only be attributed to inadvertence on part of petitioner. In view of fact that parties were well aware as to in respect of which property execution proceedings were filed as also application for handing over possession, amendment of description of property in said application can therefore hardly cause any prejudice to respondents. It is further required to be noted that respondents have also raised objection as regards description of property only in year 2012. Executing Court has proceeded on premise that provisions of Order VI, Rule 17 would be applicable. Further held that application for amendment filed in year 2012 was filed beyond limitation and therefore could not be allowed.
Executing Court has erred in proceeding on premise that Order VI, Rule 17 of CPC would be applicable. Order VI, Rule l7 applies to amendment of pleading, and cannot apply to execution proceedings and more so in respect of application for possession which has been filed in which through inadvertence description of property in so far as 2 boundaries are concerned is omitted. Power that is to be exercised by Executing Court is inherent power under Section 151 and power to permit amendment under Section 153 of CPC Power under Section 153 to permit petitioner to correct boundaries in application for possession of property required to be exercised as it would lead to travesty of justice as petitioner who has decree in favour passed as long back as in year 1974 and also Sale Certificate dated 10.3.1980 would be : deprived of possession of property on ground of mere technicality.
Civil Procedure Code, 1908 - Order VI, Rule 17, Order XXI, Rule 97, Sections 151 and 153 - Correction in property details in execution proceedings.
An application filed in execution proceedings to correct description of property already appearing in sale certificate issued by Executing Court, liable to be allowed. - As indicated above, what has been sought is correction of boundary on western side and mentioning of boundary on southern side. Said boundaries are already appearing in Sale Certificate which has been issued to petitioner. Hence it is not as if for first time some new boundaries are sought to be mentioned and thereby new property is sought to be included in e xecution proceedings. Prayer for appointed of DILR can only said to be consequential to main relief in said application. Since what is ought is only correction of boundaries in application, provisions of Article 136 of Limitation Act would therefore have no applicability. Application for correction in property details, allowed.
1. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.
2. The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 12/04/2012 passed by the Executing Court i.e. the learned 8th Joint Civil Judge, Junior Division Kolhapur by which order Exhibit 163 filed in Civil Misc. Application No.1351 of 1980 for correction of the description of the boundaries of the property in question came to be rejected.
3. The facts necessary to be cited for the adjudication of the above Petition can be stated thus:-
The Petitioner-Bank is the original Plaintiff who had filed Special Civil Suit No.22 of 1973 against one Rajaram Cement Pipes Company which was a partnership firm and its partners being Shri Dadasaheb Nimbalkar, Mrs.Radhabai Dadasaheb Nimbalkar and Shri Rajaram Nimbalkar for recovery of the amount due to it under a loan facility granted by it to the said partnership firm in the year 1969. The said loan facility was secured by mortgage of the property created by Shri Dadasaheb Nimbalkar and Shri Rajaram Nimbalkar by executing a mortgage deed dated 30/01/1969 in favour of the Petitioner which deed was duly registered in the office of Sub-Registrar, Kolhapur bearing No.KRV/484/1969. It appears that the said property was purchased by Shri Dadasaheb Nimbalkar from Pinappa Ramchandra and Appa Pinappa Mandpe vide a registered sale deed dated 6/10/1944.
4. In the context of the controversy which is involved in the present Petition, it would be relevant to reproduce the description of the property mortgaged to the Petitioner.
Description of mortgaged property:
Plot Nos.101 to 116 out of CTS No.2113 K/26 situated at Nimbalkar Colony, E Ward, Kolhapur admeasuring about 11131 1/9 Sq.yards bounded as follows:-
Towards East : 30 ft road and Life Insurance Corporation Company
Towards West : Property of Mr. Shirgaonkar
Towards South : Property of Mr. Bhausaheb Mahagaonkar
Towards North : Property of Respondent.
The said suit came to be decreed by the learned Civil Judge, Junior Division, Kolhapur by Judgment and order dated 25/6/1974. Since the said judgment was not challenged by the Defendants i.e. the partners of the said partnership firm, the same became final and binding. The Petitioner put the said decree in execution by filing Special Darkhast No.72 of 1976. In view of the fact that the decree was one for recovery of money, the Executing Court by order dated 18/6/1976 granted permission to auction the said mortgaged property. The auction was held on or around 3/8/1979, however, no bids were received. The Petitioner therefore sought permission of the Executing Court to itself purchase the suit property, which was granted by the Executing Court. The Petitioner accordingly purchased the mortgaged property for an amount proportionate to the outstanding dues. Pursuant to the said purchase by the Petitioner, the Executing Court directed the issuance of a Sale Certificate in favour of the Petitioner in respect of the said mortgaged property which was done on 10/3/1980. In the said Sale Certificate boundaries of the said mortgaged property was the same as has been adverted to in the earlier part of this order.
5. The Petitioner filed Civil Misc. Application No.1351 of 1980 on or about 3/5/1980 for delivery of possession of the property purchased by it as the same was in occupation of the judgment debtors. The said application was filed invoking Order XXI Rule 95 of the Code of Civil Procedure. It appears that during the pendency of the said application, Shri Rajaram Nimbalkar expired on 8/11/1981. By an order passed by the Executing Court on 30/4/1982 the present Respondents and one Shri Dhairyasheel Nimbalkar and Ms. Sushila Nimbalkar, the son and daughter of Shri Rajaram Nimbalkar were brought on record as his legal heirs and representatives. The said Dhairyasheel Nimbalkar on 7/2/1986 filed an objection (Exhibit 50) in the said Mis
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
