High Court
Legal Reasoning
(8) cra-71-2018.odtsuch cases, issues must be framed, evidence taken and judgmentwritten according to the law applicable to suits.10.It is well settled that objection to execution of decree has tobe decided by following procedure under Rule 101. Further Rule103 provides that application adjudicated upon under Rule 98 orRule 100 shall have the same force and will be subject to the sameconditions as an appeal as if it were a decree. At this stageobservations of Supreme Court of India in case of Periyammal(D) through Lrs. and others (supra) can be referred, which readsthus:“49. Thus, Rule 97 not only provides remedy to a decreeholder in obtaining possession of an immovable property butalso to a stranger who obstructs or resists delivery ofpossession of the property by claiming derivative title fromthe judgment debtor or independent right, title or interest inthe decretal property. Whereas, Rule 99 gives right to a thirdparty claiming right, title or interest in the property to seekrestoration of the decretal property. Suffice it to say that theremedy under Rule 99 is available when a person claimingright to the decretal property is already dispossessed. 50. Rule 101 enjoins upon the executing Court dealing withapplication under Rule 97 or 99 to determine all questionsincluding questions relating to right, title or interest in theproperty, arising between the parties and relevant to theadjudication of the application. As held by this Court inSilverline Forum (supra) the question that the executingcourt is obliged to determine under Rule 101 must possess toadjuncts viz. (i) that such question should have legallyarisen between the parties and (ii) such question must berelevant for consideration and determination between theparties. Upon adjudication of such questions, the executingcourt is under an obligation to pass appropriate order ascontemplated under Rule 98 or 100, as the case may be.When eventually such order is passed, it would be treated asdecree and no separate Suit would lie against such order. It (9) cra-71-2018.odttherefore follows that the only remedy is to prefer an appealbefore the appropriate court against such deemed decree.”11.It is, therefore, evident that Executing Court while dealingwith objections has to first find out as to whether question foradjudication has been legally arisen between parties and relevantfor consideration and determination between parties. Uponadjudication of such question, Executing Court is under obligationto pass appropriate order as contemplated under Order XXI Rule98 or 100, as the case may be.12.Looking to aforesaid exposition of law, it can be observed thatobjection to execution of decree requires comprehensive decisionafter following procedure of suit and if objection to execution ofdecree is by State Government or authorized officer on behalf ofState, Section 32 of Maharashtra Civil Courts Act will necessarilyoust jurisdiction of subordinate Judge. The Constitution Bench ofthis Court in case of The Secretary of State for India Vs.Narsibhai Dadabhai Patel4 observed that even in cases whereState has been made party by Court at the request of officer and nosuit has been instituted against him by plaintiff, Section 32 confersexclusive jurisdiction of trying suit of specified description byDistrict Judge (now Civil Judge Senior Division).13.In light of aforesaid exposition of law, no fault can be foundin impugned order whereby learned Civil Judge Junior Division4AIR 1924 Bom 65. (10) cra-71-2018.odtrecorded that he has no jurisdiction to entertain and try objectionapplication by State in execution proceeding with furtherstipulation to issue request letter to Principal District Judge,Aurangabad to withdraw execution proceedings and transfer thesame to the Court of Civil Judge Senior Division vide ParagraphNo.233 of Civil Manual.14.Although this Court affirmed impugned order, it can beobserved that execution proceeding is arisen out of eviction decreepassed against tenants in a suit instituted by landlord. The issueas to whether State Government can assert its title over suitproperty has been dealt with by this Court while deciding SecondAppeals between parties and after recording findings that tenantscannot dispute title of landlord, decree has been passed. It isevident that shops have been constructed by predecessors in title ofapplicants. The tenants were inducted by him and he wasreceiving rent. If that is so, whether shops in question areconstructed on Government land cannot be subject matter ofexecution of eviction decree passed in favour of landlord. In suchcase, Executing Court will have to first decide if question posed inobjection legally arise between parties and relevant forconsideration or determination between parties to the suit. Thequestion that arises if Government wants to claim any right overthe lands in possession of landlord or his tenants, the Government (11) cra-71-2018.odtcan take up appropriate proceeding as permissible under law tosecure possession of property. Therefore, possibility that objectionpetition has been brought at the instance of tenants to prolongeexecution of decree needs examination by Executing Court beforeentering into further question.15.The Executing Court will have to take note of observationsmade by this Court while deciding Second Appeals. Primary thereappears dispute as to whether shops are constructed onGovernment land from Survey No.180 or those are on the landfrom Survey No.179/1. Such question is definitely unconcernedwith execution of decree in present suit. Keeping in mind aforesaidobservations, Executing Court shall proceed to deal with objectionas expeditiously as possible and in any case within a period of sixmonths from the date of this order. 16.In that view of the matter, Civil Revision Applications standrejected. (S. G. CHAPALGAONKAR)JUDGEDevendra/June-2025
Arguments
(1) cra-71-2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCIVIL REVISION APPLICATION NO.71 OF 2018ANDCIVIL REVISION APPLICATION NO.72 OF 2018ANDCIVIL REVISION APPLICATION NO.73 OF 2018ANDCIVIL REVISION APPLICATION NO.74 OF 2018ANDCIVIL REVISION APPLICATION NO.75 OF 2018ANDCIVIL REVISION APPLICATION NO.76 OF 2018ANDCIVIL REVISION APPLICATION NO.77 OF 20181.Pandharinath S/o. Dashrath ChavanAge: 78 years, Occ. Business2.Prakash S/o. Pandharinath ChavanAge: 42 years, Occ. BusinessBoth R/o. Vinayak Colony, Vaijapur,Tq. and Dist. Aurangabad..ApplicantsVersus1.Jafar Fate Mohd.Age: Major, Occ. BusinessR/o. Vaijapur, Dist. Aurangabad.2.State of MaharashtraThrough Sub Divisional Officer, Vaijapur,Dist. Aurangabad...Respondents …Mr. R. N. Dhorde, Senior Advocate i/by. Mr. P. S. Dighe a/w Mr. V.R. Dhorde, Advocate for Applicants.Mr. B. B. Kulkarni, Advocate for Respondent No.1.Mr. V. S. Badakh, AGP for Respondent No.2.… CORAM : S. G. CHAPALGAONKAR, J.Reserved On : 08th MAY, 2025.Pronounced On : 09th JUNE, 2025.JUDGMENT:- 1.The applicants impugn order dated 19.03.2018 passed bylearned Civil Judge Junior Division, Vaijapur in R.D. Nos.40/2015, (2) cra-71-2018.odt36/2015, 37/2015, 38/2015, 39/2015, 41/2015 and 42/2015, by whichapplication filed below Exhibits 62, 62, 67, 81, 87 and 123 by SubDivisional Officer on behalf of State has been allowed holding thatCivil Judge Junior Division has no jurisdiction to entertain and tryobjection applications filed by State in pending executionproceeding. Eventually, request letter is issued to PrincipalDistrict Judge, Aurangabad to withdraw execution proceedingalongwith objection petitions filed by State from the file of CivilJudge Junior Division, Vaijapur and transfer same to the Court ofCivil Judge Senior Division, Vaijapur administratively videParagraph No.233 of the Civil Manual.2.Brief facts giving rise to present Civil Revision Applicationscan be narrated as under: The applicants (decree holders) purchased house propertyout of Survey No.179/1/1 (CTS No.963) situated at Vaijapur fromVinodkumar Hansraj Agarwal. It consists of Cinema Theater andEleven shops, which were occupied by tenants. Since seventenants were in default of rent, applicants had instituted suits forrecovery of rent and possession against them in the Court of CivilJudge Junior Division at Vaijapur. On 23.02.2009, suits weredecreed and decree has been confirmed upto this Court. Theapplicants filed proceeding for execution of decree vide R.D.Nos.40/2015, 36/2015, 37/2015, 38/2015, 39/2015, 41/2015 and (3) cra-71-2018.odt42/2015 before Civil Judge Junior Division at Vaijapur. At thisstage, Sub Divisional Officer filed objections to execution of decreeand delivery of possession on the ground that decree has beenobtained without adding State of Maharashtra as party. The landSurvey No.180/1 is owned by State Government. The SurveyNo.179/1 is situated on Northern side of Survey No.180/1. The suitproperty is part of Government land. The owners of SurveyNo.179/1/1 have encroached upon Government land and raisedconstruction of shops, so also inducted tenants. The previousowner Vinodkumar Agarwal was receiving rent. The dispute as tothe ownership of suit property is pending since 1965. Theapplicants have purchased suit property in the year 1996 fromoriginal owner Mr. Vinodkumar Agarwal. It is, therefore, prayedthat decree passed in suit be canceled.3.During pendency of aforesaid objection petitions, SubDivisional Officer moved applications contending that sinceobjections are instituted on behalf of State, proceeding requires tobe transferred to Court of Civil Judge Senior Division in view ofSection 32 of the Maharashtra Civil Courts Act, 1869. The CivilJudge Junior Division ceased to hold jurisdiction to take upobjections filed on behalf of State, which requires hearing anddisposal as a suit in light of Paragraph No.345 of Civil Manual. (4) cra-71-2018.odtThe learned Civil Judge Junior Division, Vaijapur allowedaforesaid objections and passed impugned order.4.Mr. Dhorde, learned Senior Advocate appearing forapplicants would submit that applicants are landlord. The evictiondecree has been passed against tenants by Competent Court in theyear 2009. The tenants are directed to deliver possession of suitproperty to applicants. The decree has been confirmed by thisCourt while dismissing Second Appeals of tenants in the year 2014.The execution proceeding is pending since 2015. He would submitthat due to political pressure, objection petitions have been filed bySub Divisional Officer, who has no right to resist execution ofdecree. Mr. Dhorde would invite attention of this Court to theobservations of Additional Collector, Aurangabad while recordinghis order dated 04.11.1992, which records that land SurveyNo.179/1 is private property and Government land is part andparcel of Survey No.180. He would further invite attention of thisCourt to the observations made in order dated 22.09.2014 passedby this Court in Second Appeal No.812/2012 alongwith companionAppeals, which records that appellants/tenants have admitted thatvendors of applicants was their landlord and they were paying rentto him. As such, landlord and tenants relationship is admittedwith predecessor in title of applicants. Mr. Dhorde would submitthat this Court while deciding Second Appeals has observed that (5) cra-71-2018.odt“whether shops in questions are standing in Government landencroached by Nadarshah or by Hansraj is an independentquestion between Government and Hansraj or his successorsinterse. The status of tenants would remain as it is. They cannotraise grievance denying title of their landlord or claim thatproperty in question is Government property”. Mr. Dhorde wouldfurther submit that objection raised on behalf of Sub DivisionalOfficer is untenable. He would further urge that Civil JudgeJunior Division, Vaijapur had jurisdiction to entertain executionproceeding and deal with objection raised by respondent no.2 inaccordance with law. The impugned orders were passed relyingupon Section 32 of the Maharashtra Civil Courts Act andParagraph No.345 of Civil Manual is untenable and liable to bequashed and set aside.5.Per contra, Mr. Badakh, learned AGP for respondent-Statevehemently submits that suit property is part of Government land.The decree under execution is collusive. Therefore, objection underOrder XXI Rule 97 of Code of Civil Procedure has been rightlyraised. According to him, even a stranger who obstructs or resistsdelivery of possession of property, claiming derivative title from thejudgment debtor or independent right, title, or interest in thedecretal property, has the right to raise an objection under Rule 97of the Code of Civil Procedure. The Executing Court is under (6) cra-71-2018.odtobligation to determine all such objections under Rule 101.Mr. Badakh would submit that in view of provisions of Section 32of Maharashtra Civil Courts Act, no subordinate Court other thanCourt of Civil Judge Senior Division can receive or register any suitin which any officer of Government in his official capacity is a partyand every such proceeding needs to be refer to Court of Civil JudgeSenior Division, who is empowered to hear and decide the same.He would further submit that Paragraph No.345 of the CivilManual provides that any disputes arise in the course of suit, theprovisions as to suits shall be applicable as objections under OrderXXI Rule 97 requires to be decided as a suit where Government is aparty, proceeding is required to be transferred or placed fordecision before Civil Judge Senior Division. In support of hiscontentions he relies upon following judgments.1.Periyammal (D) through Lrs. And others Vs. V.Rajmani and Another Etc.1.2.Brahmdeo Chaudhari Vs. Rishikesh Jaiswal2.3.Tanzeem E Sufia Vs. Bibi Haliman and others, CivilAppeal No.5457/2022 (SC).4.Shreenath Vs. Rajesh and Others3.6.Having considered submissions advanced by learnedAdvocates appearing for respective parties, limited issue thatarises for consideration in these Civil Revision Applications is12025 INSC 329.2AIR 1997 SC 856.31998 4 SCC 543. (7) cra-71-2018.odt“Whether in execution proceeding initiated by landlord againsttenants in pursuance of decree of eviction/delivery of possession, ifobjection to execution of decree is raised on behalf of State throughits authorized officer, proceeding as to the objection can be takenup by Civil Judge Junior Division?”7.It is apposite to refer to Section 32 of the Maharashtra CivilCourts Act, 1869, which reads thus:“1[32. (1) No subordinate Court other than the Court of 2[CivilJudge (Senior Division)] and no court of small causes shallreceive or register any suit in which 3[the Crown] or anyofficer of the 4[Government] in his official capacity is a party.(2) In every such case the Plaintiff shall be referred toCourt of the 2[Civil Judge (Senior Division)] and such suitshall be instituted only in the Court of the 2[Civil Judge(Senior Division)] and shall be heard by such 5[Civil Judge],subject to the provisions of section 24 of the Code of CivilProcedure, 1908.”(3)…………..(a) ……..(b) ……..”8.Plain reading of aforesaid provision shows that only Court ofCivil Judge Senior Division is competent to receive, register ordecide suit, wherein Government or its officers in official capacityis a party.9.Similarly, Paragraph No.345 of Civil Manual mandates thatwhen disputes arise in the course of execution proceedings, theprovisions as to suits, unless inapplicable, should be followed. In