Esha//Shakuntala IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 611 OF 2023 WITH WRIT PETITION NO. 848 OF 2024 (F)

1. Mr. Lawrance Pereira, son of late Mr. Roque Pereira, 70 years of age, married, and his wife

2. Mrs. Juliana Pereira, wife of Mr.

Lawrance Pereira, 65 years of age, married, Both residents of H.No. 4/133, Porba Vaddo, Calangute, Bardez, Goa. … PETITIONERS Versus

1. M/s Kay Jay Constructions Co. Pvt.

Ltd. With registered office at 5, National House 27, Raghunath Dadajee Street, Fort Mumbai-

400001, Represented herein by its Director Haresh Dayaram Kotwani, Resident of 21, Anjali, Behind Radio Club, Colaba Bombay- 40000.

2. Mrs. Maria Sebastiana Pinto daughter of Late Roque Pereira 75 years of age, married, and her husband, 3. Mr. Bernard Ignatius Pinto, son of Ignatius Pinto 65 years of age, Married Both residents of H. No. 4- 133, Porba Vaddo, Calangute, Bardez, Goa. … RESPONDENTS *****

Mr. Abhijeet Gosavi with Mr. Amay Phadte, Mr. Guruprasad Naik and Mr. Austin C. D’Souza, Advocates for the Petitioners in Writ Petition No. 611 of 2023.

Mr. Amay Phadte and Mr. Austin C. D’Souza, Advocates for the Petitioners in Writ Petition No. 848 of 2024 (F).

Mr. Jatin Ramaiya with Mr. Omkar Thakur, Advocates for Respondent No. 1 in both Writ Petitions.

Mr. Kapil Kerkar, Advocate for Respondent Nos. 2 and 3 in both Writ Petitions.

CORAM: BHARAT P. DESHPANDE, J.

RESERVED ON: 3^rd APRIL 2024 PRONOUNCED ON: 15^th APRIL, 2024

JUDGMENT:

1.

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.

2.

Both these Petitions are taken up together for arguments and disposal with the consent of the parties since the same are connected.

3.

Heard learned Counsel Mr. Abhijeet Gosavi appearing with Mr. Amay Phadte, Mr. Guruprasad Naik and Mr. Austin D’Souza for the Petitioners, Mr. Jatin Ramaiya with Mr. Omkar Thakur for Respondent No. 1 and Mr. Kapil Kerkar for Respondent Nos. 2 and 3, in both these Petitions.

4.

Writ Petition No. 611 of 2023 is filed challenging the order passed by the learned Executing Court dated 06.09.2023 thereby refusing to stay the execution proceedings.

5.

The Petitioners are the Objectors in Special Execution Application No. 13/2017/B, who filed an Application under Order XXI, Rule 97, 99 and 101 of CPC thereby claiming that the Petitioners have right, title and interest in the suit property as Mundkars and since a Petition is filed for declaration of Mundkar before the Mamlatdar, the execution be stayed.

6.

In order to understand the matter, it is necessary to disclose a few facts. A property exists in the village Calangute bearing Survey No. 362/10-B having a dwelling house bearing No. E- 4/133-C. Respondent No. 1-M/s Kay Jay Constructions Company Private Limited filed a suit against Respondent Nos. 2 and 3 namely, Maria Pinto and Bernard Pinto bearing Special Civil Suit No. 3/2010 claiming specific performance of a contract.

7.

Respondent No. 2-Maria Pinto and Respondent No. 3-

Bernard Pinto executed a Memorandum of Understanding (MoU) whereby they agreed to sell the property to M/s Kay Jay Constructions Company Private Limited for the amount mentioned therein. The said Special Civil Suit was decreed on filing the consent terms between Respondent Nos. 1, 2 and 3 vide decree dated 09.09.2010. Since Respondent Nos. 2 and 3 failed to convey the title and possession of the suit property, Respondent No. 1 filed Execution Proceedings No. 13/2017 before the learned Trial Court, which is still pending.

8.

The Petitioners claiming to be the brothers of Maria Pinto and Bernard Pinto [Respondent Nos. 2 to 3], approached the learned Mamlatdar by filing an Application for declaration of mundkarship, which is registered as Mundkarial Case No. 6/2018. The learned Mamlatdar passed an ex-parte order thereby restraining the Respondents therein from creating any third party interest. The said mundkarial proceedings are filed by the Petitioners against Jose Fernandes and others including Maria Pinto and Ber