Consent decrees are enforceable despite objections where no prior challenge was made, and execution can proceed as agreed terms provide equitable resolutions.

JUDGMENT :

Rajesh S. Patil, J.

1. Learned Counsel for the Decree Holder seeks leave to amend prayer clause (a) of the Interim Application No. 1971 of 2021 by deleting line of prayer clause (a) from the words “further appoint the Applicant as the agent of the Court Receiver” and replace it with words “hand over possession to the Decree holder – Ajit Avinash Ghate”

1.1 Leave as prayed for is granted. Amendment to be carried out forthwith.

2. The Judgment Debtor has raised her objection to the Execution of the decree. Hence, the Decree Holder has filed the Execution Application. In the said Execution Application, he has filed an Interim Application seeking appointment of the Court Receiver, to execute the Decree.

3. The property in dispute in the present proceeding is a flat in the building “Janki Jivan”. The said building was constructed by a person namely Sitaram. Said Sitaram had two sons, Madhav and Avinash. Madhav had two daughters and Avinash had only one son by name Ajit.

4. Out of two daughters of Madhav, one daughter has no dispute with Ajit and has vacated the said flat after receiving her share of monies. Hemalata, another daughter of Madhav, had raised objections in the present Execution Application against Ajit.

5. Sitaram had executed his Will and in the said Will, there is a reference of the flat in dispute. The Will is in Marathi language and translation of the same has been enclosed to the Execution Application. The important para of the said Will is reproduced herein below.

“(Translation of a Will written in Marathi.)

WILL

I, Sitaram Narsinha Ghate, a Hindu, age 85 years, retired Engineer, residing at "Janaki Jeevan", Lady Jahangir Road, Matunga Bombay 19 D.D. in a sound state of mind make this my last Will as under:-

I hereby revoke all the Wills, made heretofore i.e. prior to the date 16th December 1971 and this Will shall be treated as my only Will.

I am appointing Avinash, my second son, as the sole executor of this Will and the administrator of my entire property. My first son Viz. Chi. Madhav or anybody else has nothing to do with the same.

The particulars of my present property are as under:

1) The building viz. "Janaki Jeevan", wherein I am residing at present, together with garages, partitioned room etc. in compound No. 207 and first three floors of the said building are of my absolute ownership. However, the top floor of the building, at present wherein my son viz. Avinash is residing, is constructed by Avinash himself from is self earned monies, with my permission and the same is absolutely of his ownership. Save and except the said fourth floor, all other constructions in the said compound, have been made from out of my self earnings and the same are entirely of my sole ownership. Any other person i. e. my wife viz. Sou. Jankibai Ghate or my two sons viz. Chi. Madhav and Avinash or my daughter viz. Chi. Sau. Rajani Bhate of anybody else has nothing to do with the same. The lease (deed) of my building has been registered in the names of my sons viz. Chi. Madhav and Avinash. And they have given in writing the stamp paper viz. "We do not have any right to the said building viz. “Janaki Jeevan". I myself receive the rent of all my constructions and I myself pay the Municipal taxes. Both of my sons are nothing to do with the same. Chi. Madhav is my elder son, He has only daughters. However, the younger son viz. Chi. Avinash has one son. In order that my property may remain with Ghate Family only. I declare that Chi. Avinash and all his heirs shall get the same (property), after my death.

Except the two blocks, there are tenants in my house (i.e. in the portion of my ownership).