Advocates:
['KULKARNI ASHUTOSH S', 'SHRI A H KASLIWAL', '', 'CVTR']

1 SA 570/2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Second Appeal No.570 of 2015

With

Civil Application No.12967 of 2015

Shivaji s/o. Bhausaheb Bankar.

.. Appellant.

Versus

Jijabai Prabhakar Alwane

And Others.

.. Respondents.

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Shri. V.J. Dixit, Senior Counsel, instructed by Shri.

Ashutosh Kulkarni, Advocate, for appellant.

Shri. A.D. Kasliwal, Advocate, holding for Shri. A.H.

Kasliwal, Advocate, for respondent No.5.

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CORAM: T.V. NALAWADE, J.

DATE : 21^st OCTOBER 2015

ORDER:

1)

The appeal is filed to challenge the judgment

and order of Regular Civil Appeal No.17/2015 which was

pending in the Court of the District Judge-1 Vaijapur and

also to challenge the order made on Exhibit 42 in Special

Darkhast No.30/2013 which was pending in the Court of

the Civil Judge, Senior Division, Vaijpur. The execution

2 SA 570/2015

proceeding is filed by the present respondent, original

plaintiff of Special Civil Suit No.401 of 2007 which was

filed for relief of specific performance of contract of sale

of immovable property. The decree is given in favour of

the plaintiff and the decision has become final. By filing

application at Exhibit 42 in execution proceeding, present

appellant, objection petitioner, contended that he has

purchased the suit property for valuable consideration

and without notice and so he is entitled to keep the

possession. The executing Court has rejected the

application by holding that in view of Rule 99 of Order 21

of Civil Procedure Code and Rule 101 of the same Order,

the application is not tenable as it is not the contention

that he is dispossessed. The First Appellate Court has

held that as the application itself is not decided on merit

and it is held that the application of the objection

petitioner was not tenable, the appeal cannot be

entertained.

2)

The learned Senior Counsel for the appellant

submitted that both the Courts have committed error. He

submitted that in view of law settled, the application of

3 SA 570/2015

the objection petitioner is tenable under provision of

Order 21 Rule 97 of the Civil Procedure Code. He placed

reliance on a case reported as (1998) 4 SC 543

(Shreenath v. Rajesh). The words "any person" used in

Rule 97 are considered and interpretation is made by the

Apex Court that words 'any person' may be either the

person bound by the decree, the person claiming title

through judgment debtor or claiming independent right of

his own including a tenant not party to the suit or even a

stranger. The facts of the said case were totally different

and it was noticed that the tenant was already in

possession, before institution of the suit. In view of that

circumstance, his right to continue the possession was

required to be considered. It was held that said person

was in possession in his own right and he was not

representing the judgment debtor's interests. There

cannot be dispute over this proposition. Following

reported cases on this point were also cited.

(i) Sameer Singh v. Abdul Rab [(2015)1 SCC 379)];

(ii) 2001 BCI 222 (N.S. Narayana Sarma v. Goldstone

Experts Pvt. Ltd.);

(iii) 2008 (1) Bom.C.R. 111 (Sharad v. Gauramma);

4 SA 570/2015

(iv) 1980 Bom.C.R. 140 (Sitaram v. Laxman);

(v) 2011 (6) Bom. C.R. 619 (Pralhad v Sitabai).

3)

The learned Senior Counsel for the appellant,

objection petitioner, submitted that the objection

petitioner is a bona fide purchaser and so his objection is

in independent right and he is not representing the

interests of the judgment debtor. He submitted that there

is Bombay Amendment to section 52 of the Transfer of

Property Act, 188