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2025 Supreme(Online)(SC) 1093
ITEM NO.57 COURT NO.6 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 2154/2024 [Arising out of impugned final judgment and order dated 24-07-2023 in WP No. 11913/2022 passed by the High Court of Judicature at Bombay]
SHIVAJI SHANKAR GAWDE Petitioner(s)
VERSUS RAMESH WAMAN SHINDE Respondent(s)
(IA No.5813/2024-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.5810/2024-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/
ANNEXURES)
Date : 24-02-2025 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE J.K. MAHESHWARI HON'BLE MR. JUSTICE ARAVIND KUMAR For Petitioner(s) : Mr. Ashutosh Ghade, AOR Ms. K. Lakshmi, Adv.
For Respondent(s) :Mr. Amol Chitale, Adv.
Mr. Sarthak Sharma, Adv.
Mrs. Pragya Baghel, AOR UPON hearing the counsel the Court made the following
O R D E R
1. Leave granted.
2. The appellant, who is a decree-holder, filed execution proceedings stating that the respondent herein is the encroacher. By issuing notice to the respondent, they filed objection to the said application. The executing court treated Signature Not Verified Digitally signed by G Dau tls eh : a 2n 0 2K 5u .0mt2a .2r h7Aroera said application and objections under Order XXI, Rule 7, of Reason:
the Code of Civil Procedure and framed five issues as quoted in para 2 of the impugned judgment. The respondents filed an application for recasting those issues objecting in particular issue No.3 and to frame the additional issues. The executing court rejected the said pryer.
3. On filing petition under Article 227 of the Constitution before the High Court, it was accepted and in para 14 of the impugned judgment, the High Court observed thus :
“14. ... In view of the above, Issue No. 3 is not interfered with and additional issue is required to be framed as to whether the decree holder proves that the decree under execution is binding upon the third party/obstructionist.”
4. After hearing learned counsel for the parties and on perusal of the nature of the directions and the manner in which additional issue has been directed to be framed. The language to frame the additional issue primarily indicate that the burden has been shifted on the decree-holder to prove that the decree under execution is binding upon third party or obstructionist. In our view, in the execution framing such negative issue putting burden on the decree-holder is wholly unjustifiable. However, in the execution proceedings, if objections are there, it may be decided as deemed appropriate by the executing court but by framing the issue as directed by the High Court putting burden on the decree-holder is not in accordance with law.
5. Accordingly, the order passed by the High Court is set aside and we direct the executing court to decide the execution at the earliest, not later than six months.
6. We make it clear that we have not expressed any opinion on the merits of the objections. However, all contentions are left open to be raised by the parties before the Executing Court.
7. The Appeal is accordingly allowed. Pending applications, if any, shall stand disposed of.
(GULSHAN KUMAR ARORA) (NAND KISHOR)
AR-CUM-PS COURT MASTER
