2022:BHC-GOA:955 WP 86 OF 2022.ODT Esha IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 86 OF 2022

1. Shri. Madan Waman Chodankar, (Since Deceased) Now through his legal representatives, a) Smt. Medha Madan Chodankar, widow, Age 67, wife of Madan Chodankar, b) Mr. Jatin Madan Chodankar, Age 44, son of Madan Chodankar c) Mr. Jaimeen Madan Chodankar, Age

38, son of Madan Chodankar, All residing at Betim, Bardez-Goa. (Original plaintiffs, and are Decree Holders in Exe. Appl. No. 92/2008). … PETITIONERS Versus

1. M/s. Keshav Malik Hardware Corp. H. No. 15, Ward No. 13, Opp. Office of Capt. of Ports Building, D.B.

Marg, Panjim, Goa.

2. Shri. Dyneshwar Keshav Malik, Partner of M/s. Keshav Malik Hardware Corp. Residing at Alto Porvorim, Goa.

3. Shri Ramakant Keshav Malik, Partner of M/s. Keshav Malik Hardware Corp., Residing at Alto Porvorim, Goa.

4. Shrikant Keshav Malik, Partner of M/s Keshav Malik Hardware Corp.

Residing at Alto Porvorim, Goa.

5. Mr. Gurudas Malik (since deceased), 5(a) Smt. Laxmi Gurudas Malik

5(b) Keshav Gurudas Malik, 5(c) Dr. (Mrs.) Sudha Shivanand Gawas

5(e) Mrs. Latita Mohan Kavlekar

5(f) Ms. Vinanti Gurudas Malik

5(g) Anju Gurudas Malik 5(h) Lina Gurudas Malik 5(i) Amita Gurudas Malik 5(j) Nima Gurudas Malik All major of age and Residing at Savitri Niwas, Alto, Porvorim, Bardez, Goa.

(Res. No. 1 to Res. No. 5 (h) were original Defendants, and are Judgment Debtors in Exe. Appl. No. 22/2008)

6. Mr. Tahir V. Isani, Major of age, businessman, Residing at Altinho, Mapusa-Goa (Third Party/Obstructionist in Exe, Appl. No, 22/2008) … RESPONDENTS ******

Mr. S.D. Lotlikar, Senior Advocate with Mr. Terence Sequeira and Ms. Sailee Kenny, Advocates for the Petitioners.

Mr. Shivan Desai with Mr. Varun Bhandankar, Advocates for Respondent No. 6.

CORAM: SANDEEP K. SHINDE, J.

RESERVED ON: 14 JULY 2022 PRONOUNCED ON: 25 JULY 2022 JUDGMENT:

1.

Heard Mr. Lotlikar, learned Senior Counsel for the petitioners and Mr. Desai, learned Counsel for the respondent no.

6. 2.

Rule. Rule made returnable forthwith. Mr. Shivan Desai, learned Counsel, waives service on behalf of the respondent no. 6.

Heard finally by consent of parties.

3.

The short question, arises for consideration, is, whether, the Executing Court was justified in continuing enquiry, in an Application, purporting to have been filed by the third party, under Order XXI, Rules 97 and 101 of the CPC, although, enquiry has revealed that third party-respondent no. 6 was pendente lite of the judgment debtor.

4.

Briefly stated facts of the case are as under:

The petitioners instituted a suit in the Court of Civil Judge Senior Division at Panaji, being Special Civil Suit No. 97/1996/B, for dissolution of partnership; recovery of mesne profits and eviction of judgment debtor nos. 1 to 5(i), who were defendants in the said suit. It was the petitioner's case that the original plaintiff no. 1 was tenant of the suit premises, wherein the business of defendant no. 1 (partnership firm) was carried on. In terms of partnership deed, the tenancy rights of the said premises continued to be the personal property of the original plaintiffs. On account of disputes between the plaintiffs and other partners of the firm, the original plaintiffs, gave a notice of dissolution of the partnership firm to the defendant nos. 2 to 4 and sought discontinuation of the use of the suit premises and delivery of vacant possession to them alongwith other reliefs.

5.

On 24.04.2008, the learned Adhoc Civil Judge Senior Division at Panaji, decreed the suit, whereby, the defendants/ judgment debtor were inter alia directed to vacate the suit premises and deliver its vacant possession to the plaintiffs. Since the possession of the suit premises was not handed over by the judgment debtor, despite the decree attaining finality, the original plaintiffs filed an Application for execution of the decree, which came to be registered as Execution Application No. 22/2008/B. Pending Execution, in February, 2009, an Application, purporting to be an Ap