The duty of the Executing Court to ensure that the decree-holder is put in possession of the property, the subservient rights of subsequent purchasers to the rights of the judgment debtor, and the need to reduce delay in execution proceedings.

JUDGMENT :

Privy Council in Court of Wards vs. Maharajah Cooma Ramapur has observed as under :—

“That the difficulties of a litigant in India begin when he has obtained a decree, because the same is hardly executed.”

2. The present Writ Petition depicts the woes of a decree-holder, who is kept away from the fruits of the decree from 26-7-2004 and the present Writ Petition arises out of an application filed by him, seeking possession of the suit premises.

3. The petitioner/original plaintiff, Smt. Anjanabai Tathe, filed a Special Civil Suit No. 66 of 1666 in the Court of Civil Judge, Senior Division, Panvel against the defendants/respondents, seeking a declaration that Sale Deed dated 26-12-1667 executed by defendant No. 2 in favour of defendant No. 1 and the power of attorney alleged to have been executed by her deceased husband in favour of defendant No. 2 is null, void and not binding upon the plaintiffs and defendant Nos. 3 to 6 and also sought restraint order against defendant Nos. 1 and 2 for causing obstruction in her peaceful enjoyment of the said land located at Survey No. 110/1-B of village Chikhale, Taluka Panvel, District Raigad. Pertinent to note that plaintiff Nos. 2 to 5 are the real brothers and defendant Nos. 3 to 6 are their sisters and Smt. Anjanabai (plaintiff No. 1) is their mother.

It was pleaded in the suit that the land belonging to deceased Gopal Krishna Tathe, who expired on 7-1-1668, was cultivated by the plaintiffs and defendant Nos. 3 to 6 jointly and they were having undivided share in the suit land, since it was not partitioned during the lifetime of deceased Gopal and it was claimed as an ancestral property. It is averred that Gopal Thate was an alcoholic. On his demise, when the plaintiffs applied for recording their names in the record of right, it was revealed upon them that the suit land was sold by defendant No. 2, as a power of attorney holder, to defendant No. 1 vide Sale Deed dated 26-12-1667 for consideration of Rs. 7,50,000/-. Claiming that defendant No. 2 had no right to sell the suit land to defendant No. 1 and alleging that the power of attorney in favour of defendant No. 2 was forged, the suit was instituted.

4. On 26-7-2004, the suit was decreed by the Civil Judge, Senior Division at Panvel and the declaration, as prayed for by the plaintiffs, was granted. Defendant Nos. 1 and 2 were directed to hand over possession of the suit land to the plaintiffs and defendant Nos. 3 to 6 within a period of three weeks on receiving intimation of the judgment and they were further restrained from transferring, alienating or creating any third party interest in the suit land. A decree was directed to be drawn up accordingly.

5. The petitioners filed Execution Application wherein respondent Nos. 10 to 12 filed an application under Order 21, Rule 67 of the Code of Civil Procedure, 1608 (for short, “The Code”), obstructing the execution of the decree. The submission of the petitioners is that in-spite of the decree being granted in their favour, respondent Nos. 1 and 2 (original defendant Nos. 1 and 2) created third party right in respect of the suit property.

In the Execution proceedings, respondent Nos. 10 to 12, who are the subsequent purchasers, were permitted to lead the evidence. In the earlier round of litigation before this Court, when Writ Petition No. 163 of 2020 came to be filed challenging the order passed below Exh.72 dated 6-8-2016, this Court refused to interfere in the impugned order, but recorded that it will not preclude the petitioner from executing possession warrant, if any. This order was passed on 22-1-2021.

6. The possession warrant, issued on 1-4-2016, returned back as ‘unserved’ as on the suit property, a company named ‘Offshore Infrastructure Ltd.’ is functioning with 62 to 70 workers and the Bailiff reported that possession of the suit property, as per the possession warrant, cannot be handed over to the decree-holder, without having the boundaries measured by a Government Surveyo