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2023 Supreme(Bom) 480
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Milind N. Jadhav, J.
Sukumar Bhoja Shetty - Applicant
Versus
Ganapal Bhoja Shetty - Respondent
Notice Of Motion No. 210 Of 2019
IN
Testamentary Suit No. 113 Of 2017
Decided On : 13-06-2023
Advocate Appeared:
For the Appellant : Ms. Smita Vora, Adv.
For the Respondent: Mr. Vishal Kanade a/w. Mr. Satish Raut, Adv.
The final and absolute nature of a decree, and the failure to challenge it in the appellate court, can render subsequent attempts to revisit the issues impermissible.
Headnote:
Injunction - Testamentary Suit - Code of Civil Procedure, 1908 - Order XXI Rule 29
Fact of the Case:
The Plaintiff filed a Notice of Motion seeking to restrain the Defendant from proceeding with execution proceedings in a partition suit until the hearing and disposal of a testamentary suit. The Plaintiff claimed legacy to the entire estate of the deceased based on a will, propounded in the testamentary suit.
Finding of the Court:
The court found that the decree from the partition suit had become final and absolute, and the Plaintiff had not challenged it in the appellate court. The court held that the Notice of Motion was not maintainable and dismissed it.
Issues: The main issue was whether the Plaintiff could restrain the Defendant from execution proceedings in the partition suit based on the pendency of the testamentary suit.
Ratio Decidendi: The court ruled that the Plaintiff's attempt to revisit the issues from the partition suit and seek an embargo through the Notice of Motion was not permissible, especially since the decree had become final and the Plaintiff had not challenged it in the appellate court.
Final Decision: The Notice of Motion was dismissed with no costs.
The key points from the legal document are as follows:
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The plaintiff filed a Notice of Motion seeking to restrain the defendant from proceeding with execution proceedings in a partition suit until the hearing and disposal of a testamentary suit. The plaintiff claimed a legacy to the entire estate based on a will propounded in the testamentary suit (!) .
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The court observed that the decree from the partition suit had become final and absolute, and the plaintiff had not challenged it in an appellate court. Consequently, the court held that the Notice of Motion was not maintainable and dismissed it (!) .
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The main issue was whether the plaintiff could restrain the defendant from executing the partition decree on the grounds of the pending testamentary suit. The court emphasized that the decree had become final and that the plaintiff had not challenged it in an appellate forum, making subsequent attempts to revisit the issues impermissible (!) (!) .
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The plaintiff's case was that the testamentary suit, which claimed a bequest of the entire estate, was filed prior to the passing of the partition decree. The plaintiff argued that this justified a stay of the execution proceedings under relevant procedural provisions (!) (!) .
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The defendant contended that the partition decree had become final and that the plaintiff had not challenged it, thus the present motion was not maintainable. The defendant also questioned the authenticity and timing of the will, suggesting it was a subsequent afterthought and potentially fabricated to defeat the decree (!) (!) (!) .
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The court noted that the partition suit was initiated in 2007, resulted in a final decree in 2017, and was not challenged by the plaintiff in an appellate court, rendering it final and binding (!) .
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It was highlighted that the plaintiff had the opportunity to seek probate of the will after the deceased's demise but chose not to do so, instead waiting until after the partition decree was passed to file the testamentary suit. This delay was viewed as suspicious and an attempt to manipulate the legal process (!) (!) .
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The court found that the plaintiff's attempt to restrain the defendant's proceedings was essentially an effort to revisit the final partition decree, which was not permissible since the decree had become final and no appeal was filed (!) .
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The court also noted that the plaintiff had not produced the original will during the earlier proceedings, and the will's authenticity was questionable due to alleged alterations and the deceased’s medical condition at the time of its purported execution (!) (!) .
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Based on these considerations, the court concluded that the present motion was not maintainable and dismissed it without costs, emphasizing that the plaintiff could have challenged the partition decree earlier or produced the original will during the trial but failed to do so (!) .
In summary, the court dismissed the plaintiff’s motion primarily because the earlier partition decree had become final, and the plaintiff’s attempt to stay proceedings was viewed as an impermissible re-litigation of settled issues.
JUDGMENT:
1. This Notice of Motion is filed for seeking the following reliefs:-
“a. That pending the hearing and final disposal of the above Suit the Defendant abovenamed be restrained by Order and Direction of this Hon’ble Court not to proceed further with the proceedings in Execution Application No.151 of 2018 now pending before the Learned Court Commissioner for Taking Accounts, of this Hon’ble Court for partition of the residential flat No. 7, in Sapna Building, New Asha Nagar Corporative Housing Society Ltd., Road No.3 Chembur, Mumbai – 400 089, and for taking Accounts of Swagat Lunch Home, Shop No. 10 & 11 & Room No.68 in Amar Mahal Building Mumbai, as mentioned in the said Decree dated 6th May, 2017 passed by The Bombay City Civil Court in L.C. Suit No. 5256 of 2007 till the hearing and Final Disposal of the above Testamentary Suit.
b. The Learned Commissioner for taking Accounts of this Hon’ble Court be requested not to proceed further in the said Execution Application proceedings in the said City Civil Court Suit pending before him till the hearing and final disposal of the above Testamentary Suit.”
2. Applicant in the Notice of Motion is the Plaintiff in Testamentary Suit No.113 of 2017. It is contended by Applicant that in view of pendency of Testamentary Suit in this Court, Defendant ought to be restrained by an order of injunction from proceeding further in Execution Application No.151 of 2018 before the learned Court Commissioner for Taking Accounts, Bombay High Court, inter alia, for partition of residential flat No.7 in Sapna Building, New Asha Nagar CHS, Chembur, Mumbai and for Taking Accounts of Swagat Lunch Home situated in Amar Mahal Building, Chembur, Mumbai. In effect, Applicant prays for stay of execution proceedings filed pursuant to a decree dated 06.05.2017 passed by the Bombay City Civil Court in L.C. Suit No.5256 of 2007 (between the same parties) until the hearing and disposal of Testamentary Suit No.113 of 2017.
3. Before I advert to the submissions made by the learned Advocates, it would be opposite to refer to such of the relevant facts which are necessary for adjudication of the present Notice of Motion.
3.1. Name of the deceased is Bhoja Kanthappa Shetty. He has two sons i.e. Applicant (Plaintiff) and Respondent (Defendant). After his demise on 17.03.2004, Respondent (Defendant) filed Suit being L.C. Suit No.1845 of 2007 for Administration and Partition of the estate of the deceased in this Court. The immovable properties in the said Suit proceedings were the Chembur flat and Swagat Lunch Home, as broadly described.
3.2. On 02.10.2012, Suit was transferred to the Bombay City Civil Court and renumbered as L.C. Suit No.5256 of 2007. The said Suit was contested by the Applicant (Plaintiff) in the Bombay City Civil Court. Evidence was led by parties. Trial took place which culminated in the disposal of the Suit by a final Judgment and decree dated 06.05.2017. By the said decree, the learned City Civil Court held that the Applicant (Plaintiff) and Respondent (Defendant) were entitled for partition of the residential flat by metes and bounds and also appointed the Court Commissioner, High Court Bombay for Taking Accounts of the Swagat restaurant business of the deceased which was in the hands of the Applicant (Plaintiff).
3.3. Admittedly the decree dated 06.05.2017 has not been challenged by the Applicant (Plaintiff) and has thus became absolute and final.
3.4. It is contended by Applicant (Plaintiff) that just before the decree was passed on 06.05.2017, Applicant (Plaintiff) filed Testamentary Petition No.1585 of 2016 propounding a Will of 2003 of the deceased. Respondent (Defendant) filed Caveat and Affidavit-in3 of 11 support thereof resulting in the Testamentary Petition being converted into the present Testamentary Suit No.113 of 2017.
3.5. In the meanwhile, Respondent (Defendant) filed Execution Application No.151 of 2018 for execution of the decree dated 06.05.2017. By order dated 26.06.2019, Responden
