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2014 Supreme(Bom) 1347
IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR.
Z.A. Haq, J.
Ramchandra Guja Rewatkar - Petitioner.
Versus
Mango Vithya Koche - Respondent
Writ Petition No.4908 of 2013.
Decided On : 09th July, 2014
Shri P.A. Markandeywar, Advocate for petitioner.
Headnote:Civil Procedure Code, 1908 - Order XXI, Rules 10 and 11 Execution proceedings. - Dismissal of execution proceedings for want of directions for delivery of possession of suit land, in decree, improper. It is undisputed, that the petitioner is having a decree in his favour for specific performance of contract of sale of the suit field. It is undisputed, that pursuant to the decree passed in favour of the petitioner, the Sale Deed of the suit field has been executed in the execution proceedings bearing No. 5 of 1989. The submissions made on behalf of the respondents before the Executing Court as recorded in para No. 3 of the impugned order show that the judgment debtors are trying to. raise the issues before the Executing Court, which issues have attained finality ’while adjudication of the claims of the respective parties in Regular Civil Suit No. 112/1976. In Court’s view, neither it was open for the judgment debtor to re-agitate the issues about the joint ownership of the judgment ’debtors and other four persons over the suit property nor the Executing Court could have gone beyond the decree.
It appears that, the Executing Court has considered this material which could not have been considered by it and, therefore, the impugned order is vitiated. The Executing Court has not justified that on which basis it has come to the conclusions that the suit number mentioned in Exhibit-1 is totally false or totally different. Moreover, the conclusion of the Executing Court that the Court has not ordered the delivery of possession in favour of the decree holder, is also unsustainable in law.
Heard Shri P.A. Markandeywar, the learned Advocate for the petitioner. None appears for the respondents.
2. The petitioner has challenged the order passed by the Executing Court rejecting the application filed by the petitioner for grant of possession as per the decree of specific performance of contract, in favour of the petitioner. Initially, the petitioner had challenged the impugned order in revision under Section 115 of the Code of Civil Procedure vide Civil Revision Application No.737 of 1999. When the revision was listed for final hearing, the learned Advocate for the respondents had raised the objection that the civil revision application was not maintainable and this Court by the order dated 04.09.2013 allowed the petitioner to convert the civil revision application into writ petition. The petitioner has, accordingly, taken steps and now this writ petition is listed for final hearing.
3. After the petitioner had converted the civil revision application in to writ petition, it is renumbered as Writ Petition No.4908 of 2013. This Court by the order dated 13.03.2014 directed issuance of notices to the respondents, for final disposal. On that date, Shri Nitin Vyawahare, Advocate appeared for respondent Nos. 2A to 2F. The respondent No.1 has died. It is stated in the cause title that he has not left any legal representatives.
4. Shri Markandeywar, the learned Advocate for the petitioner has submitted that the petitioner had filed Regular Civil Suit No.112 of 1976 praying for decree for specific performance of contract regarding sale of Kh.No.807 (old), Kh.No.1325/1(new) of mouza Adyal, District Bhandara. This civil suit is decreed on 14021983. The petitioner/decree holder had filed the Execution Proceedings vide Application No.5 of 1989 in which the Sale Deed in respect of the suit field was executed on 25.11.1992, pursuant to the above mentioned decree. After the Sale Deed was executed, the petitioner had filed a pursis and the execution proceedings were closed. The petitioner subsequently filed Regular Darkhast No.15 of 1993 claiming possession of the concerned field. The Executing Court after considering the claim of the petitioner/decree holder and the say of the judgment debtor, by the order dated 24.11.1994 issued warrant of possession. However, before the warrant of possession could be executed, the judgment debtor had raised an objection to the maintainability of the second execution proceedings. The Executing Court after hearing the learned Advocates for the petitioner/decree holder and the judgment debtor, passed the order on 12.03.1999 and dismissed the Regular Darkhast No.15 of 1993. The petitioner being aggrieved by this order has filed this writ petition.
5. Shri Markandeywar, the learned Advocate for the petitioner has submitted that the Executing Court has committed an error while passing the impugned order by considering the irrelevant issues. The learned Advocate for the petitioner has submitted that the Regular Darkhast No.15 of 1993 is dismissed on the ground that the decree does not include the directions for delivery of possession of the suit field to the petitioner/decree holder. The learned Advocate for the petitioner has submitted that it is settled law that the decree for specific performance of immovable property includes everything incidental to be done by one party or another to complete the sale transaction and even if the decree is silent regarding the delivery of possession, the Executing Court is competent to deliver the possession. In support of this submission, the learned Advocate for the petitioner has relied on the following judgments :
1] Prataprai Trambaklal Mehta vs. Jayant Nemchand Shah and others reported in 1996(2) Mh.L.J. 885.
2] Malini V. Parab @ Prabhu & another vs. Prafullakumar R. Deshpande (since deceased represented by LR's Pratima Prafullakumar Deshpande and others reported in 2008(5) Mh.L.J. 633
3] Jafar Mian s/o Sadaq Mian vs. Smt. Qaiser Jahan Begum & Ors.
