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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

WRIT PETITION NO. 1913 OF 2022

Alka Ganeshrao Bele and ors.

..vs..

Gopal Shamraoji Kalambe and ors.

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Shri P.D. Sharma, Advocate for the petitioners.

CORAM : ROHIT B. DEO, J.

DATED :

08/04/2022.

The petitioners claim to be the legal heirs of Mr.

Ganeshrao Bele who was defendant 1(C) in Special Civil Suit

115 of 2000, which was decreed by the Civil Court vide

Judgment and Decree dated 23.09.2009.

2.

By the said Judgment and Decree, the suit is

decreed with the direction that the defendants including Mr.

Ganeshrao Bele, shall execute the sale-deed of the suit field in

favour of the plaintiffs on receipt of the balance

consideration.

3.

The plaintiffs/decree holders initiated execution

proceeding Special Darkhast 9 of 2010, in which the

Executing Court has passed an order dated 29.10.2021

directing the Nazir to execute the sale-deed of the suit

property. Further, order is passed on 13.12.2021, the

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operative part of the order reads thus :

“ORDER

1. An amount of Rs.62,635/- deposited by decree

holders vide C-No.988 on 11.01.2010 and belonging

to Morshi Seva Sahkari Society Ltd., registration

no.599, shall be deducted while paying the

consideration amount to judgment debtors, if

demanded by them.

2. Nazir shall take necessary entry in the C-register.

3.

Copy of this order be provided to Nazir

for information and necessary action.”

4.

According to the petitioners, they are the legal

heirs of Mr. Ganeshrao Bele. The petitioners claim that in

view of the provisions of Section 48(d) of the Maharashtra

Co-operative Societies Act 1960 (‘the Act’), the Executing

Court could not have directed the Nazir to execute the sale-

deed since there was an encumbrance on the field. It is

further submitted that there was no inquiry conducted and

the execution is even otherwise a nullity since Mr. Ganeshrao

Bele has expired on 16.05.2021, during the pendency of the

execution. The further submission is that the decree holder

ought to have brought on the record the legal heirs of Mr.

Ganeshrao Bele, before proceeding with the execution.

5.

It is admitted by the petitioners that pursuant to

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the order impugned, the Nazir has already executed the sale-

deed in favour of the decree holders on 27.12.2021. The

petitioners contend that the said sale-deed is illegal and one

of the prayer in the petition is that the sale-deed be set aside.

6.

This petition, in my considered view, is absolutely

misconceived.

7.

Lest there is any prejudice caused to the

petitioner, I am consciously refraining from making any

observation. Suffice it to say, that the petitioners have

appropriate remedies to assail the orders passed in the

execution.

8.

Leaving all contentions open for the petitioners to

raise before the appropriate forum, the petition is dismissed.

JU

DGE

Trupti

TRUPTI SANTOSHJI AGRAWAL

16.04.2022 11:33