High Court
Facts
(1) sa-113-2025IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.113 OF 2025WITHCIVIL APPLICATION NO.3154 OF 20251.Balasaheb Namdev Daule,Age:- 57 years, Occ. Agril,2.Saraswati Namdev Daule,Age:- 81 years, Occ. AgrilBoth R/o. Newasa Budruk, Tq. NewasaDist. Ahmednagar..Appellants(Orig. Objectors)Versus1.Balasaheb Uttam Shinde,Age:- 56 years, Occ. Agri,R/o. Khupti, Tq. Newasa,Dist. Ahmednagar.2.Sharad Namdev Daule,Age: 57 years, Occ. Agri,R/o. Newasa Budruk, Tq. Newasa,Dist. Ahmednagar...Respondents(Resp. No.1 is decree Holder and Resp. No.2 Judgment Debtor.) …Mr. R. R. Karpe, Advocate for Appellants.Mr. Yogesh S. Thorat, Advocate for Respondents.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 17th APRIL, 2025.ORDER:- 1.The present Second Appeal is filed aggrieved by judgmentand order dated 14.01.2025 passed by learned District Judge,Newasa in Regular Civil Appeal No.35/2023, thereby upholdingjudgment and order dated 26.09.2016 passed by Civil Judge, Senior (2) sa-113-2025Division, Newasa below Exhibit-30 in Regular Darkhast No.3/2015.(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The fact giving rise to present Second Appeal can besummarized as under:The dispute pertains to land Gut No.173, admeasuring 2acres situated at village Khupti, Tq. Newasa, Dist. Ahmednagar.It is joint family property of respondent no.2 and his brothers. Thewidow and daughter of deceased Arun Daule instituted suit forpartition and separate possession vide Regular Civil SuitNo.471/2001. The suit came to be decreed and decree attainedfinality in Regular Civil Appeal No.10/2015. As per decree passedby Appellate Court, plaintiffs in Regular Civil Suit No.471/2001 i.e.Sunita and Divya held entitled for 2/25th share, whereas BalasahebNamdev Daule (appellant no.1) and Sharad Namdev Daule(present respondent no.2) are held entitled for 6/25th share,whereas present appellant no.2-Saraswati Namdev Daule heldentitled for 8/25th share.During pendency of aforesaid proceeding, respondent no.2-Sharad Daule executed agreement to sale in respect of 80R landfrom Gut No.173 in favour of respondent no.1 i.e. Balasaheb UttamShinde. He instituted Regular Civil Suit No.36/2010 seekingdecree of specific performance of contract against respondent no.2- (3) sa-113-2025Sharad Daule. That suit ended in compromise, wherebyrespondent no.2-Sharad Daule agreed to execute sale deed infavour of respondent no.1-Balasaheb Uttam Shinde after decisionof Regular Civil Suit No.471/2001. Eventually, he filed RegularDarkhast No.3/2015 seeking execution of decree for specificperformance of contract passed in Regular Civil Suit No.36/2010against respondent no.2-Sharad Daule. In that executionproceeding, present appellants filed objection under Order XXIRule 97 of Code of Civil Procedure contending that decree inRegular Civil Appeal No.10/2015 is not executable. According tothem, respondent no.2 hardly entitled for 19R land from GutNo.173, whereas he agreed to sell 80R land in favour of respondentno.1-Balasaheb Uttam Shinde. On the basis of such agreement,decree is passed and same is put to execution. The execution ofdecree for specific performance of contract may prejudice rights ofappellants/objectors, who are co-sharers in Gut No.173 alongwithrespondent no.2-Sharad Daule.It is further contended that since respondent no.2 would beentitled for only 19R share from Gut No.173 as per partitiondecree, that would be fragment and hit by provision of theMaharashtra Prevention of Fragmentation and Consolidation ofHoldings Act, 1947. As such, decree for specific performance ofcontract is un-executable and Regular Darkhast No.3/2015 is liable
Legal Reasoning
(6) sa-113-2025no.2-Sharad Daule, who had executed agreement to sale in favourof respondent no.1-Balasaheb Uttam Shinde. It cannot be disputedthat even sale deed is executed in pursuance of decree in favour ofrespondent no.1-Balasaheb Uttam Shinde, that would not bind orsupersede rights of appellants. The sale deed would be valid onlyto the extent of disposable right held by respondent no.2-SharadDaule. The respondent no.1-Balasaheb Shinde (decree holder) evengets executed sale deed in pursuance to decree, he cannot claimexclusive right to receive particular part of the property on thestrength of sale deed. He being purchaser pendente lite would stepinto shoes of his vendor and at the most claim for equitablepartition and allotment/adjustment of land in execution of partitiondecree. The Supreme Court of India in case of KhemchandShankar Choudhari and Another Vs. Vishnu Hari Patil andOthers1, has observed as follows:-“A transferee from a party of a property which is the subjectmatter of partition can exercise all the rights of the transferor.There is no dispute that a party can ask for an equitablepartition. A transferee from him, therefore, can also do so.Such a construction of section 54 of the Code of CivilProcedure advances the cause of justice. Otherwise in everycase where a party dies, or where a party is adjudicated as aninsolvent or where he transfers some interest in the suitproperty pendente lite the matter has got to be referred backto the civil court even though there may be no dispute aboutthe succession, devolution or transfer of interest. In any suchcase where there is no dispute if the Collector makes anequitable partition taking into consideration the interests ofall concerned including those on whom any interest in thesubject matter has devolved, he would neither be violating thedecree nor transgressing any law.”1(1983) 1 SCC 18. (7) sa-113-20256.In light of aforesaid exposition of law, objectors cannot resistdecree for specific performance of contract, since its execution is notlikely to prejudice or supersede their rights. On execution of decreeof specific performance of contract, respondent no.1-BalasahebUttam Shinde would acquire title in joint family property in shareof respondent no.2-Sharad Daule and then would be entitled toseek equitable partition and allotment of land to the extent ofentitlement of his vendor and his purchase. In that view of thematter, no fault can be found in concurrent findings recorded byExecuting Court and First Appellate Court. Hence, no substantialquestion of law arises for consideration in this Second Appeal.Hence, Second Appeal stands dismissed with aforesaidobservations.7.In view of dismissal of Second Appeal, pending CivilApplication also stands disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/April-2025
Arguments
(4) sa-113-2025to be dismissed. The aforesaid objection came to be rejected byExecuting Court vide order dated 26.09.2016. The objectors filedAppeal before District Judge vide Regular Civil Appeal No.35/2023,which came to be dismissed on 14.01.2025. Hence, this SecondAppeal.3.Mr. Karpe, learned Advocate appearing for appellantsvehemently submits that respondent no.2-Sharad Daule executedagreement to sale in favour of respondent no.1-Balasaheb UttamShinde during pendency of suit for partition and separatepossession. As such, he cannot claim any right over suit property.He would further submit that on the basis of aforesaid agreementto sale, respondent no.1-Balasaheb Uttam Shinde obtainedcompromise decree in collusion with respondent no.2 for specificperformance of contract in respect of 80R land from Gut No.173.The appellants/objectors were not party to said proceeding and thatdecree would not bind their rights. He would further point out thatas per partition decree passed in Regular Civil Suit No.471/2001,respondent no.2-Sharad Daule is held entitled for 6/25th share insuit properties. Therefore, he can hardly claim 19R land out ofland Gut No.173 that would be fragmented and hit by provisions ofthe Maharashtra Prevention of Fragmentation and Consolidationof Holdings Act, 1947. However, Courts below failed to consideraforesaid objections and rejected the same on erroneous count. (5) sa-113-20254.I have considered submissions advanced on behalf ofappellants. I have perused reasoning adopted by Executing Courtas well as First Appellate Court while dealing with objections.Apparently, respondent no.1-Balasaheb Uttam Shinde has set upproceeding for execution of decree of specific performance ofcontract passed in his favour in Regular Civil Suit No.36/2010. Thedecree is passed on the basis of agreement to sale for 80R land fromGut No.173 executed by respondent no.2-Sharad Daule. It is truethat, aforesaid property was subject matter of partition suit inRegular Civil Suit No.471/2001 and Regular Civil AppealNo.10/2015, in which respondent no.2-Sharad Daule is heldentitled for 6/25th share in suit properties. Pertinently, apart fromGut No.173, there are other eight properties of joint family ofobjectors and respondent no.2, which were subject matter ofpartition suit in Regular Civil Suit No.471/2001.5.In this background, question is whether appellants couldhave maintain objection under Order XXI Rule 97 of Code of CivilProcedure to the execution of decree for specific performance ofcontract passed in Regular Civil Suit No.36/2010. Both Courtshave concurrently held that appellants/objectors cannot resistexecution of decree. Pertinently, decree for specific performance ofcontract is based on agreement between parties to the contract. Itis not in dispute that decree has been passed against respondent