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HIGH COURT OF BOMBAY
SMT. ANUJA PRABHUDESSAI, J
Sameer Dattatraya Deshpande – Appellant
Versus
Kishor Shamrao Jadhav – Respondent
SECOND APPEAL NO.195 OF 2022 | INTERIM APPLICATION NO.1427 OF 2022
For the Appellants/Petitioners: Mr.M.M. Sathaye, Ms.Chitrali A. Deshmukh
For the Respondents: Mr.R.P. Kasbekar
The executing court must adjudicate any claims related to title and rights raised by strangers to the decree before executing possession, ensuring adherence to principles of natural justice.
Headnote:(A) Civil Procedure Code, 1908 - Order 21 Rules 97, 99, and 101 - Execution of Decree - Appellants claim independent right, title, and interest in the suit property, which the executing court failed to adjudicate - Established that even strangers to the decree can resist execution and seek adjudication under Order 21 Rule 97 - Court cannot shy away from deciding claims relating to right, title, or interest in property during execution proceedings and must consider such claims before carrying out orders. (Paras 9, 10, 25, and 27)
(B) Natural Justice - Principles of - Appellants were not afforded an opportunity to present their claims before the executing court, resulting in a breach of natural justice. (Paras 26 and 25)
Facts of the case:
The Respondent filed a suit for possession and recovery of arrears for rented property originally owned by the deceased Defendant, who had entered into a sale agreement with the Plaintiff. The Appellants, as legal representatives, claimed co-parsonary rights to the property and alleged fraud in the sale.
Findings of Court:
The executing court failed to exercise its jurisdiction properly; the appellate court confirmed this erroneous conclusion, stating the Appellants could not challenge the decree.
Issues: Additionally, whether obstruction against execution can be raised by a stranger to the decree; whether objections inconsistent with those of the judgment debtor can be raised.
Ratio Decidendi: The court emphasized the executing court's obligation to hear all claims relating to right, title, and interest from any person, including those not bound by the decree, before executing possession. Such claims must be adjudicated upon in accordance with CPC provisions.
Result: Appeal allowed, previous orders quashed, and matters remanded to the executing court for proper adjudication.
| Table of Content |
|---|
| 1. background of property ownership and agreements. (Para 2 , 3 , 4 , 5 , 6 , 8) |
| 2. execution of decree and claims by legal heirs. (Para 7 , 9) |
| 3. arguments regarding execution and rights of parties. (Para 10 , 11 , 12) |
| 4. legal queries regarding objections in executing court. (Para 13 , 14) |
| 5. review of statutory provisions regarding property execution. (Para 15) |
| 6. court's obligation to adjudicate on rights during execution. (Para 21 , 25 , 27) |
| 7. concluding order and directions for adjudication. (Para 28) |
ORAL JUDGMENT:-
1. With consent, heard finally at the stage of admission.
2. The Appellants herein have challenged the judgment and order dated 23 December 2021, passed by the learned District Judge No.3, Kolhapur in Civil Appeal No.66 of 2021. By the impugned judgment the learned District Judge dismissed the Appeal and thereby confirmed the order dated 8 February 2021 passed by the learned Joint Civil Judge Junior Division, Kolhpaur in Regular Darkhast No.88 of 2017.
3. The brief facts necessary to decide the Appeal are as under:- The Respondent, hereinafter referred to as the Plaintiff had filed Regular Civil Suit No.819 of 2016 before the CJJD, Kolhapur, for possession and recovery of arrears of rent. The case of the Plaintiff was that Sudhir Dattatray Deshpande, (hereinafter referred to as ‘the Defendant’) owned the western portion of the property under City Survey No.1185-C/41 along with a structure admeasuring 151.63 sq. meters, situated at Rajarampuri, Kolhapur (hereinafter referred to as the ‘suit property’). The Defendant had availed loan from various banks and co-operative credit societies to meet the financial requirements of his family. He put up the suit property for sale to repay the loan. The Plaintiff agreed to purchase the the suit property and upon receipt of the major part of the sale consideration, the Defendant entered into an agreement for sale dated 30/05/2011. Upon receipt of the balance sale consideration, the Defendant put the Plaintiff in possession of the suit property and executed a sale deed dated 26/04/2016 and thereby transferred the title of the suit property in favour of the Plaintiff.
4. The Plaintiff claimed that since the Defendant was unable to find alternative premises, he requested to permit him to occupy the premises for a period of two months as a care taker. The Plaintiff acceded to the request and by agreement dated 31/05/2016 permitted the Defendant to occupy the suit premises as care taker till 24/07/2016 on payment of Rs.16,000/- per month. The Plaintiff filed the Suit for eviction alleging breach of terms and conditions of the agreement and failure to handover possession of the suit property even after expiry of the agreement.
5. The Defendant admitted that he had availed loan from several banks, credit societies, etc., to meet the financial needs of the family. The suit property was attached in the recovery proceedings initiated by the UCO Bank. He put the suit property for sale to pay off the loans availed from the Bank and to clear other financial liabilities. The Defendant admitted having entered into an agreement for sale with the Plaintiff and having put him in possession of the suit property on receipt of the sale consideration. The Defendant claimed that as per the terms of the subsequent agreement, it was agreed that the Defendant would repay the sale consideration within two years and on receipt of the sale consideration the Plaintiff would cancel the sale transaction. The Defendant was unable to repay the money. Hence, he transferred the property in favour of the Plaintiff by registered sale deed dated 26/04/2016.
6. The Defendant denied that he was put in possession of the suit property as a care taker and claimed that he was in possession of the suit property on leave and license basis. He further claimed that he was looking out for alternative premises and had requested the Plaintiff to extend the agreement by two months with an assurance to pay the arrears o
