Advocates:
['PRAKASH S TIWARI', '', 'RICHA P TIWARI', 'SHRI D N DANI', 'Y N TAHALIYANI ADVS']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

SECOND APPEAL

N O . 01/2022

Achala D/o Lalendra Khedkar @

Achala w/o Arvind Pandse

Aged about 50 years Occ: Service

R/o Andheri (East) Mumbai- 400093

... APPELLANT

...VERSUS…

Ayesha Pravin w/o Azizul Mustaque

Aged about 40 years Occ: Business

R/o Kalamna Market

Nagpur.

...RESPONDENT

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Shri A.A. Naik, Adv. with Shri P.S. Tiwari, Adv. for appellant.

Shri D.N. Dani, Advocate for respondent.

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CORAM : SMT. M.S. JAWALKAR, J

.

DATE OF RESERVING THE JUDGMENT :

25/07/2022

DATE OF PRONOUNCING THE JUDGMENT :

19/08/2022

JUDGMENT

Heard. Heard finally by consent of the learned Counsel

for both the parties.

2.

The present appeal is filed by the appellant being

aggrieved by the judgment dated 05/03/2020 passed by the

learned Ad-hoc District Judge- 2 Nagpur, passed in Regular Civil

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Appeal No. 391/2015. The parties to the appeal are hereinafter

referred to by their original status in execution proceeding as

“Objector” and “Decree holder”. The Objector is the owner of the

Plot No. 134, in Milind Nagar, House No. 1878 in Ward No. 43

Municipal Corporation, Nagpur.

3.

The case of the Appellant/Objector in brief as under -

The objector is the owner of plot No.134 in Milind

Nagar, Nagpur-17. The said plot is mutated in her name in the

record of Nagpur Improvement Trust and she has been paying

property tax and the ground rent to the aforesaid authorities. The

said plot was purchased by the objector from her mother late Smt.

Manoramabai by registered sale-deed dated 07/11/2002 for

valuable consideration of Rs.2,00,000/-. On the basis of sale-deed,

the Nagpur Improvement Trust and the Nagpur Municipal

Corporation authorities have mutated her name in their respective

record.

It is further submitted that the objector is presently

staying at Bombay and the plot are lying presently vacant with

demarcated compound. The objector recently when visited the plot

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she found that the lock of the gate and the shed is broken. On

enquiry from the nearby persons, she has been informed that the

decree holder visited the plot along with some officials and broke

open the lock.

4.

Learned Counsel for appellant relied on citations:

1) Bank of Maharashtra Vs. Bagwe Udyog Ltd. & Ors. reported in

2007 (4) ALL MR 407

2) Maharasthra Vs. Bagwe Udyag Ltd. and Ors. Reported in 2007

(4) ALL MR 407

3) Sharfuniya Begum Sahiba Vs. (Sayyad) Pacha Sahib and Ors.

Reported in AIR 1928 Mad.793

4) Mina Kumari Bibi Vs. Bojoy Singh Dudhuria reported in AIR

1960 Privy Council 388

5.

The decree holder resisted the application by filing her

reply that to defeat the right of plaintiff/decree holder, the

defendant/judgment debtor has transferred the suit property in

favour of her daughter/objector. The learned Appellate Court

rightly observed that it becomes clear that the objection raised by

the objector is without merit and liable to be rejected and dismissed

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the appeal of the objector.

6.

While issuing notice on 20/04/2022, this Court framed

following substantial question of law:

“Whether the Court’s below were correct in applying

the law relating to Lis Pendense in a case where the

prayer for specific performance has been rejected

and only refund of earnest money has been directed

against the Judgment debtor and not against the

Objector who is not party to the suit?”

7.

I have heard both the parties at length. The short

question involved in this appeal is whether the learned Lower Court

as well as learned Appellate Court is right in rejecting the objections

raised by the present appellant in Special Darkhast No.108/2007 by

applying principle