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2023 Supreme(Online)(Bom) 4932
BOMBAY HIGH COURT
HON'BLE JUSTICE SHARMILA U. DESHMUKH
GULABRAO ADINATHRAO SONPETHKAR AND OTHERS – Appellant
Versus
DHANASHRI ALIAS REKHA GULABRAO SONPETHKAR AND OTHERS – Respondent
WP/1981/2019
The Executing Court cannot go beyond the decree and has to determine the shares of the parties in accordance with the decree, which is put into execution before it.
Headnote:
PARTITION - EXECUTION - CALCULATION OF SHARES - DECREE - RELINQUISHMENT DEED - BINDING EFFECT - SECTION 47 CPC - SCOPE - MODIFICATION OF SHARES - APPROPRIATE PROCEEDINGS
Fact of the Case:
Plaintiffs filed a suit for partition and mesne profit, claiming a 3/4th share in the suit properties, which were jointly owned by the parties. The suit was partly decreed, and the plaintiffs were awarded 3/4th share in the share of defendant no.1. Defendant no.5, who was one of the legal heirs of the deceased joint family member, expired during the pendency of the execution proceedings. The petitioners, who were the original defendants, filed an objection to the share of plaintiffs, claiming that the share of defendant no.5 should be allotted only to defendants nos.3 and 4, as the other heirs of defendant no.5 had relinquished their share in their favor. The Executing Court, by the impugned order, clarified the allotment of shares and allotted 1/18th share each to the plaintiffs in the suit property.
Finding of the Court:
The Court held that the Executing Court cannot go beyond the decree and has to determine the shares of the parties in accordance with the decree, which is put into execution before it. The Court further held that the plaintiffs were not parties to the relinquishment deed executed by defendant no.1, and the said deed was not binding upon them. The Court also held that the issue of shares of the parties cannot be reopened in execution proceedings and the Executing Court has rightly determined the shares of plaintiffs in accordance with the decree qua defendant no.1.
Issues: 1. Whether the Executing Court can go beyond the decree and determine the shares of the parties in accordance with subsequent events? 2. Whether the relinquishment deed executed by defendant no.1 is binding upon the plaintiffs? 3. Whether the issue of shares of the parties can be reopened in execution proceedings?
Ratio Decidendi: 1. The scope of Section 47 of the CPC is very limited and the Executing Court cannot go beyond the decree and has to determine the shares of the parties in accordance with the decree, which is put into execution before it. 2. A relinquishment deed executed by one of the parties to a decree is not binding upon the other parties who are not parties to the said deed. 3. The issue of shares of the parties cannot be reopened in execution proceedings and the Executing Court has rightly determined the shares of plaintiffs in accordance with the decree qua defendant no.1.
Final Decision: The Court dismissed the writ petition filed by the petitioners, challenging the impugned order of the Executing Court.
‘O R D E R
1.Suit is partly decreed.
2.Suit properties, be partitioned amongst defendants No.1 to 7 and plaintiffs have 3/4th share in share allotted to defendant no.1.
3.Plaintiffs no.1 to 3 have 3/4th share, in the share of defendant no.1, in each gat no.183 adm. 4 H 30 R. in land gat no.237 1H 14R, in land gat no.345 adm. 4H 43R and the house properties as described in plaint.
4.Decree be sent to Collector, Latur for partition.
5. Court Commissioner, be appointed to partition house properties, amongst the parties.
6. Separate inquiry be made U/O. 20, R 12 (C) of C.P.C. in respect of mesne profits.
7. Parties to bear their own costs.
8. Preliminary decree be drawn accordingly.’
5. On 02.08.2018 the order was sent to the Collector, Latur for effecting partition under Section 54 of the Code of Civil Procedure (hereinafter in short ‘CPC’). After measurement of land by T.I.L.R., the Tahsildar by order dated 02.08.2018 directed the Circle Inspector, Murud to handover the possession of 3/4th share in the suit lands jointly to plaintiffs.
6. An objection petition was filed by defendant nos.1 to 4, 6 and 7 objecting to the share of plaintiffs on the ground that defendant no.5 - Rajubai had expired on 09.12.2010 and in the decree she was allotted 1/7th share in the suit properties and according to Hindu Succession Act her share devolved upon her sons and daughters and as the other heirs of defendant no.5 - Rajubai had relinquished their share in favour of defendant nos.3 and 4 i.e. Vikas and Vimal, the plaintiffs are entitled to only 3/20th share. After hearing the parties, the Executing Court passed order dated 16.01.2019 clarifying the allotment of shares and allotted 1/18th share each to the Plaintiffs in the suit property.
7. Heard the learned counsel appearing for the parties.
8. Learned counsel for petitioners submitted a note regarding calculation of shares. According to the learned counsel for petitioner as Defendant No 1- Gulabrao had relinquished his share in favour of Vikas and Vimal, his 1/42th share in 1/7th share of Defendant No 5-Rajubai cannot be given to plaintiffs and plaintiffs are entitled to 1/20th share each.
9. Per contra, the learned counsel for respondents supported the impugned order and submitted that as per the decree what was allotted to the plaintiffs was 3/4th share in the share of defendant no.1 and the relinquishment deed, if any, is not binding on the plaintiffs. He further submits that the entire exercise of raising objection has been undertaken by petitioners only to prolong the partition of the suit property as per the decree. He would urge this Court to award exemplary cost as in spite of the decree being passed in the year 2002 due to the various objections raised by petitioners the partition has not yet been effected.
10. I have considered the rival submissions of the parties. By order dated 31.03.2005 passed by the 3rd Jt. Civil Judge Junior Division, Latur in Regular Civil Suit No.358 of 2002, the plaintiffs were awarded 3/4th share in the share of defendant no.1, which order has attained finality as the petitioners have not challenged the same. The issue in the present case revolves upon calculation of shares which is to be allotted to plaintiffs in view of the subsequent event of the demise of Defendant No 5- Rajubai. The entire effort on the part of petitioners is to demonstrate that the share of Rajubai which would otherwise devolve upon defendant nos.1 to 4, 6 and 7 in accordance with Section 15 of the Hindu Succession Act will now be allotted only to Vikas and Vimal as the other defendants and in particular, defendant no.1 has relinquished his share in favour of Vikas and Vimal. In the suit which has been decreed plaintiffs have been granted 3/4th share in the share of defendant no.1 and in my view upon death of Defendant No 5-Rajubai her share devolved upon petitioner no.1 - Gulabrao to the extent of 1/42nd share and only in order to defeat the rights of plaintiffs, the relinquishment deed has been
