Tukaram v. Vinod

Mr. P.S.Pawar, advocate for the petitioner. CORAM : R.M.BORDE, J. DATE : 20th March, 2012. PER COURT: 1 The petitioner is taking exception to the order dated

17.02.2012, passed by the trial Court directing issuance of warrant of attachment, as contemplated under Order 21 Rule 54 of the Code of Civil Procedure. 2 Respondent – original plaintiff instituted suit, being R.C.S. No.55/2010, claiming partition and separate possession of land G.No.38, admeasuring 2 hectares 25 ares. The dispute between the parties was settled before Lok Nyayalaya and it was decided that the property in dispute shall be sold prior to “Gudi Padwa” of the year 2011 and the sale proceeds shall be distributed amongst the plaintiff and defendant equally. At the same time, it was settled that defendant shall be entitled to price of 34 gunthas {2} wp242212.odt land in addition to his share to the extent of 50%. It was also settled that their elder brother Laxmikant shall be entitled to receive Rs.7500/- from the plaintiff and elder brother of defendant Tukaram shall be entitled to receive Rs.42,500/- from the defendant.

It was further agreed that if the amount is not paid as agreed, recovery thereof can be effected by way of execution of the decree. 3 Since the property could not be sold by mutual consent till Gudi Padwa of the year 2011 and sale proceeds could not be derived and distributed in terms of the settlement, the plaintiff- decree holder presented execution application, being R.D. No.7/2011 for execution and enforcement of the decree. In the pending execution proceedings, plaintiff/decree holder also tendered an application for attachment of the property, which has been allowed by the executing Court. 4 I have perused the application as well as the impugned order passed by the executing Court and heard arguments advanced by Shri Pawar, learned Counsel for the petitioner. The executing Court, in the facts and circumstances of this case, is expected to take steps for disposal of the property i.e. Land G.No.

38, admeasuring 2 hectares 25 ares and the sale proceeds received upon sale of the property shall have to be disbursed amongst plaintiff, defendant and others in accordance with terms of {3} wp242212.odt settlement reached between the parties. I do not find any error in the order passed by the executing court directing attachment of the property under Order 21 Rule 54 of the Code of Civil Procedure. It is also to be taken note of that Order 21 Rule 58 CPC provides that where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions contained in Rule

In the instant matter, there does not appear to be any objection raised by the petitioner herein in accordance with Order 21 Rule 58 of the Code of Civil Procedure. It would be open for the petitioner to take appropriate steps in that regard. Writ Petition is devoid of substance. 5 Writ Petition stands rejected. adb/wp242212 R.M.BORDE JUDGE