Back
2023 Supreme(Online)(Bom) 24154
BOMBAY HIGH COURT
VALMIKI SA MENEZES, J
Manuel Rodrigues – Appellant
Versus
Davidinha Rodrigues e Dias – Respondent
Writ Petition | No.258 of 2020
For the Appellants/Petitioners: Mr. Sudin Usgaonkar, Ms. Pooja Naik
For the Respondents: Mr. V. A. Lawande, Mr. Parimal S. Redkar
A second execution application is impermissible when the decree has been fully satisfied in a prior execution.
Headnote:(A) Constitution of India - Article 227 - Execution proceedings - Second execution application not maintainable after full satisfaction of the decree in the first execution - Prior possession acknowledged by petitioners. (Paras 1, 10, 26)
(B) Civil Procedure Code - Jurisdiction of court to enforce orders - Inherent powers referenced under Section 151 applicable, but not for second execution; must be for interim orders in ongoing suits. (Paras 15, 16, 21)
(C) Portuguese Civil Procedure Code - Article 840 discussed concerning powers in Inventory Proceedings; multiple executions for possession not applicable once decree is satisfied. (Paras 24, 25)
Facts of the case:
The petitioners assail a prior judgment dismissing their second execution application for recovery of property possession after acknowledging their earlier possession via execution of the first application.
Findings of Court:
The petitioners were granted earlier possession and could not maintain a second application for the same relief since the first was fully executed.
Issues: Whether a second execution application is maintainable after full satisfaction of the initial decree.
Ratio Decidendi: Subsequent applications after total satisfaction of a previous decree do not lie, as parties cannot maintain parallel proceedings for the same relief.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. determining the maintainability of second execution applications. (Para 1 , 2) |
| 2. arguments regarding the legal framework and historical context. (Para 5 , 10 , 11 , 12) |
| 3. rights and powers of courts in executing decrees. (Para 15 , 16 , 21) |
| 4. judicial decision on the second execution application. (Para 26) |
| 5. conclusion and dismissal of the petition. (Para 27 , 28) |
JUDGMENT :
1.This petition under
2.In reply to the petition, the respondents filed an affidavit dated03.02.2022 opposing the admission of the petition. Since the question that arises for my determination is whether in the facts and circumstances of the case, a second Execution Application was maintainable at law.
3.Rule. With the consent of the parties rule made returnable forthwith.
The petition is disposed of finally with the consent of the parties.
4.On the basis of the pleadings in the petition and record annexed to the affidavit in reply, the following facts are relevant for consideration in deciding this matter:-
(a) In an Inventory Proceeding No.87/2003/I(O)/Inventory Proceeding No.111/2003/I(N) (hereinafter referred to as “Inventory Proceeding”) of the late parents of the petitioners and respondents, one of the properties in their estate, known as “Temporalem Moina”, admeasuring 1125 square metres in survey No.7/5 of village Carmona, Salcete, Goa (hereinafter referred to as “suit property”) on which there stands a residential house admeasuring 175 square metres, came to be allotted to the petitioners, pursuant to an auction held in the Inventory Proceeding. The suit property which included the house was allotted in favour of the petitioners by a Final Chart of Partition of the estate dated 28.03.2012 passed in the Inventory Proceeding.
(b) The petitioners thereafter filed an execution proceeding in the Inventory Court seeking enforcement of the final chart of allotment/partition and requested the Inventory Court to execute its allotment dated 28.03.2012 by evicting the respondents and placing the petitioners in possession of the suit property; a Warrant of Possession dated 04.05.2015 issued by the Inventory Court came to be executed by the bailiff of the Inventory Court on 04.05.2015 itself, were on a compliance report was recorded by the bailiff of the Inventory Court setting out that he had used labourers to remove all the material existing in the suit house, without obstruction from the Judgment debtors/respondents and had fully executed the Warrant of Possession, by putting the suit property in possession of the petitioners, who then placed new locks on the door of the suit house. As a token of having received possession of the suit house on execution of the warrant, the petitioners signed on the compliance report, thus acknowledging that they had taken possession of the suit property. This possession is not disputed by the petitioners and has been clearly pleaded by the petitioners at paragraph nos. 2(i) to 2(l) of the present petition.
(c) The petitioners further claim that after taking possession of the suit property in
