High Court
Legal Reasoning
( 1 ) wp5357.25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD1 WRIT PETITION NO. 5357 OF 2025BHIMASHANKAR NARAYAN GADEWAR AND ANOTHERVERSUSOSMANABAD JANATA SAHAKARI BANK LTD THROUGH ITS BRANCHMANAGER AND OTHERSMr. P.R. Katneshwarkar, Sr. Advocate i/b. Mr. A.A. Fulfagar, Advocate forthe petitioners.Mr. S.B. Choudhari, Advocate for respondent No.1.Mr. Sachin Deshmukh h/f. Mr. Ramchandra Patil, Advocate for theintervenor.CORAM:KISHORE C. SANT, J.DATE:05.05.2025PC :-01.Heard by consent of the parties for final disposal.02.The petitioners - guarantors have approached this Courtchallenging an order dated 17.03.2025 passed by the executing Court inRD No. 127 of 2009 (Exh. 310). This order is passed on the applicationseeking arrest warrant against present petitioners. The learned TrialJudge in the order has recorded that in view of the findings in RegularCivil Suit No. 11 of 2009, rights on the property i.e. Gat No. 81/1/1 arenot established by the petitioners and therefore the property cannot beattached. It is further made clear that in such circumstances, the list of ( 2 ) wp5357.25property of JD Nos. 1 to 3 are sufficient enough to discharge the liabilityand be auctioned. Inspite of such auction, if no amount could berecovered, JD Nos. 1,3 and 5 be put in civil prison. The opponents in theexecution proceeding is directed to give details of the properties whichcould be auctioned till the next date.03.Learned Sr. Advocate Mr. Katneshwarkar for the petitionersvehemently argued that the petitioners are ready to bring purchasers forthe property Gat No.81/1/1. This one property itself is sufficient todischarge entire loan liability. Unless all the efforts are made to disposeof the properties belonging to the petitioners, no arrest warrant couldhave been issued. He thus submits that the order impugned is illegal. Toresort to such order, is last the remedy and it is necessary to make everyefforts to auction the land. It submitted that in First Appeal the appellantand some of the respondents have entered in compromise. In suchsituation, he submits that no arrest warrant could have been issued andprays for allowing the writ petition by setting aside the impugned order.04.Pursuant to what transpired in this Court on last date,petitioner – Bhimashankar has filed an affidavit stating that there ismortgage-deed executed in favour of the bank by borrower and the ( 3 ) wp5357.25guarantor and it is for that purpose, he cannot auction the property. Hehas further stated that he would bring purchasers, in case bank gives noobjection to the petitioners to sell the mortgaged property.05.Mr. Choudhari appearing for the respondent-bank opposesthis petition. He submits that the bank has clearly pointed out to theexecuting Court that as to how the property cannot be sold in auction.Even revenue record does not show names of the petitioner and sincethere is litigation pending, it is difficult to auction the land. He, thus,prays for rejection of the petition.06.Learned Advocate Mr.Deshmukh for the added respondentsvehemently opposes the petition. The added respondents also claim tohave interest in the property i.e. Gat bearing No. 81/1/5, whereas thepetitioners’ property is Gat bearing No. 81/1/1. Learned Advocate forthe applicant submits that there are already orders passed by this Court.One order is passed in FA No. 715 of 2006, wherein the petitioners in thewrit petition were respondent Nos. 1 and 2. This Court in the said FirstAppeal granted interim order restraining respondent No.3 therein i.e.Avinash Patil – principal borrower from creating third party interest in thesuit property till the respondent files reply. The learned Advocate for the ( 4 ) wp5357.25applicants makes statement that now First Appeal is admitted bycontinuing the interim relief. Second order he points out is the orderpassed by this Court in Letters Patent Appeal, arising out of order passedby this Court in Writ Petition No. 3810 of 2010, whereby there is staygranted to the judgment impugned therein. Said litigation is arising outof mutation entries. Later on said writ petition was admitted, however,without interim relief. In the Letters Patent Appeal, this Court directed tomaintain status-quo by its order dated 18.01.2016. There is yet anotherWrit Petition bearing W.P. No. 3119 of 2024 pending in this Court, inwhich, this Court has granted ad-interim stay to the order dated31.01.2024 passed by the District Judge, Latur in MCA No. 14 of 2017.In the said appeal the Appellate Court has reversed the order ofinjunction granted by the Trial Court. 07.Heard learned Advocates for the parties. The order of theexecuting Court is clear. It is clearly recorded that unless all the effortsare taken, no arrest warrant be issued. However, later on, the executingCourt has issued arrest warrant, by operative order. Though theobservations and the order appear to be contradictory, it is seen that theCourt has made observations in view of the position pointed out to theCourt. All the orders passed by this Court and the fact that various other ( 5 ) wp5357.25litigations are pending. The bank inspite of its desire to auction the land,could not sell the land. This Court also finds substance in the submissionthat unless there is name shown of the petitioner over the land in therevenue record, no purchaser would come forward to purchase the land.Though learned Sr. Advocate submits that with all these, there arepurchasers in the market, who are still ready to purchase the land and itwould be his responsibility to bring such purchaser for that purpose.There is also undertaking to that effect dated 30.04.2025. However, withthe background above, it seems to be not possible.08.In view of the above submissions and the orders passed bythis Court in respect of the said property, this Court finds that it wouldnot be proper to allow the petitioners to dispose off the land. Theinjunction is in respect of the property. Though it is tried to be agitatedby the petitioners that the injunction is only against principal borrower,this Court is not preapred to accept this argument. If the petitioner isallowed to sell the land, it would be contrary to the orders already passedby this Court, which are referred above. It is pointed out that in the FirstAppeal, now there is compromise between the appellant and some of therespondents. However, it is seen that the interim order is still in force.The petitioner may try to dispose off any other property, which is not
Decision
( 6 ) wp5357.25subject matter of any of the litigation.09.It further needs to be noted that the petitioner is very muchparty to the First appeal and the earlier writ petitions. Inspite of thisbeing the position, he has not pointed out orders passed by this Court tothe executing Court. This Court finds force in the arguments of learnedAdvocate Mr. Deshmukh that it was necessary for the petitioner to pointout earlier orders to the executing Court. Since the observations of theorder passed by the executing Court and the operative order appear tobe some-what contrary, it would be for the petitioner to deposit theamount within eight weeks by putting any other property to sell. Theeffect of the impugned order is suspended for eight weeks.10.Thus, this writ petition is disposed off by suspending theeffect of the impugned order for a period of eight weeks from today.[KISHORE C. SANT, J.] snk/2025/may25/wp5357.25