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wp no.160 of 2016

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.160/2016

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Mr. Suresh Ramsingh Gurkha

son of Ramsingh Gurkha,

major of age,

2

Mrs. Shoba Suresh Gurkha

Wife of Suresh Ramsingh

Gurkha, housewife, major

of age,

3

Mr. Ramesh Ramsingh

Gurkha, major of age,

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Smt. Manisha Ramesh

Gurkha, major of age,

all residents of

Khadpabandh, Ponda, Goa.

... Petitioners

V/s

Shri Durgaram Shankar Naik

Son of late Shankar Naik,

Major of age, married,

resident of “Shubhada”,

behind Dr. Gaunekar Hospital,

Tambdi

Mati,

Taleigao,

Tiswadi, Goa.

... Respondent

Shri Jude Sequeira, Advocate for the

Petitioners.

Shri Gaurish Agni and Shri Eeshan Usapkar,

Advocates for the Respondent.

CORAM : C.V. BHADANG, J.

DATE : 3^rd AUGUST, 2016

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wp no.160 of 2016

JUDGMENT :

Rule made returnable forthwith. The

learned Counsel for the respondent waives

service. Heard finally by consent of the

parties.

2.

The challenge in this petition, at the

instance of the petitioners/judgment debtors, is

to the order dated 4/07/2015 passed by the

Executing Court whereby application (exhibit

17/D) filed by the petitioners, under Section 47

of the Civil Procedure Code has been rejected.

3.

The brief facts are that the petitioners

claim to be mundkars in respect of house no.68

standing in property bearing Survey No.20/1 of

Ponda. The entire Survey No.20/1 admeasures

92,750 square metres and it originally belonged

to one Mr. Shrirang Talaulikar, from whom the

respondent/decree holder has purchased a part.

The respondent had filed Regular Civil Suit

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No.172/1994/A against the petitioners and Smt.

Bhima Gurkha claiming permanent injunction

against the petitioners which suit was decreed

by the learned Civil Judge Junior Division at

Ponda

on

22/09/2008

granting

permanent

injunction restraining the petitioners from

doing illegal construction and/or increasing the

plinth area of mundkarial house and from doing

any construction within 3 metres from the

boundary line of respondent's property. There

was an order of mandatory injunction directing

the petitioners to demolish the illegal

construction already carried out beyond the

plinth area and within 3 metres setback area

from the boundary wall of the respondent. It is

a matter of record that the petitioners

unsuccessfully challenged the said judgment and

decree initially before the learned District

Judge in Regular Civil Appeal No.102/2008 and,

thereafter, before this Court in Second Appeal

No.25/2010 which was dismissed on 27/01/2012.

Thus, the judgment and decree in favour of the

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wp no.160 of 2016

respondent has attained finality. The respondent

sought to execute the said decree in Execution

Application No.9/2011/A before the learned

Senior Civil Judge at Ponda in which the

petitioners filed an application under Section

47 of Civil Procedure Code claiming that they

have applied to the Joint Mamlatdar under

Section 29(4) and Section 8(A) of the Goa, Daman

and Diu Mundkar (Protection from Eviction) Act,

1975 (Act, for short) for declaration as

mundkars of the house bearing no.68 located in

the property bearing Survey No.20/1. It was

contended that in view of the pendency of the

said proceedings the execution proceedings need

to be stayed.

4.

The application was opposed by the

respondent. It was contended that the Executing

Court is bound by the decree which has been

confirmed and the application was misconceived.

5.

The Executing Court found that the

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petitioners for the first time raised the

objection on the basis of the pendency of the

mundkarial

proceedings

which

cannot

be

considered. The Executing Court found that the

petitioners are claiming mundkarial rights in

respect of property of Mr. Shrirang Talaulikar

and not the decree holder and