High Court
Facts
(1) CRA-156-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.156 OF 20241.Govind s/o Sadashiv MadadgaonkarSince Deceased through L.Rs.a.Smt. Chhabubai w/o Govind Madadgaonkar, Aged 55 years, Occu: Householdb.Bandu s/o Govind Madadgaonkar, Aged about 40 years Occu: Servicec.Shivaji s/o Govind Madadgaonkar,Aged about 36 yrs. Occu: Trader. Nos. 1(a) to 1(c) r/o Maliwada, Sherkar Galli, Ahmednagar2.Rajaram s/o Shadashiv Madadgaonkar,Aged 60 years, Occu: Trader, r/o Sarafa Bazar, Ahmednagar...Applicants (Original Defendants)Versus1.Vasantrao s/o Haribhau DedgaonkarSince deceased through L.Rs.1.Anil Vasant Dedgaonkar,Aged 56 yrs. Occu: Business r/o 608, Sadashiv Peth, Pune.2.Pradip Vasantrao Dedgaonkar,Aged 52 yrs. Occu; Business, R/o Juna Kapad Bazar, Ahmednagar Now dead.3.Sanjay s/o Vasantrao Dedgaonkar,Aged 50 years, Occu: Business r/o 608, Sadashiv Peth, Pune.4.Pravin s/o Vasantrao Dedgaonkar,Since deceased through L.Rs.4A. Ranjana Pravin Dedgaonkar, Aged 50 yrs. Occu: Household, r/o Juna Kapad Bazar, Ahmednagar (2) CRA-156-2024.odt4B. Amol Pravin Dedgaonkar, Aged 24 yrs. Occu: Nil, r/o as above.5.Sushilabai w/o Vasantrao Dedgaonkar,Aged 75 yrs. Occu: Household r/o as above. Now Dead, no more...Respondents (Original Petitioners)...Mr. S. M. Kulkarni, Advocate for the Applicants.Mr. S. S. Bora, Advocate for Respondent Nos.1, 3, 4A and 4B.... CORAM : S. G. CHAPALGAONKAR, J.DATE : 26th NOVEMBER, 2024.ORDER:- 1.The applicants are taking exception to order dated30.09.2024 passed by Civil Judge Junior Division, Ahmednagar inRegular Darkhast No.61/2019 below Exhibit-1, thereby issuingpossession warrant of the suit property as described in Schedule ofexecution application Exhibit-1.2.The applicants are judgment debtors. They suffered decreefor delivery of vacant possession of the suit premise to plaintiff inRegular Civil Suit No.25/1989, as per order dated 14.03.2019passed by this Court in Writ Petition No.6037/2004. The aforesaiddecree has been put to execution in Regular Darkhast No.61/2019.The applicants/original defendants filed objections to the ExecutionPetition vide Exhibits 16, 27 and 38 on the ground that decreeholder has not filed city survey record about suit property as per (3) CRA-156-2024.odtCivil Rules. Further, during pendency of Writ Petition before thisCourt, one of the legal heir of original plaintiff namely PradeepVasantrao Dedgaonkar died on 08.11.2018. However, his legalheirs were not brought on record. The suit property is not properlydescribed. Further, there is no compliance of Order XXI Rule 11(e)of the Code of Civil Procedure. The Trial Court after hearing theparties, rejected objections raised by judgment debtors and orderedissuance of possession warrant in respect of suit property.3.Mr. Kulkarni, learned Advocate appearing for the applicantssubmits that order passed by this Court in Writ PetitionNo.6037/2004 is subject matter of Review Petition filed by theapplicants. Till the decision of the Review Petition, ExecutingCourt should not have issued possession warrant. He wouldfurther submit that Executing Court erroneously rejectedobjections to the execution of decree. Mr. Kulkarni submits thatsuit was instituted by late Shri. Vasantrao Dedgaonkar againstapplicants/tenants for eviction. On death of original plaintiff, hislegal heirs were brought on record including his wife Sushilabaiand four sons namely Anil, Pradip, Sanjay and Pravin. Pradipexpired during the pendency of writ petition. However, his legalrepresentatives were not brought on record. Therefore, decree infavour of dead person is nullity. Mr. Kulkarni would furthersubmit that description of property in Execution Petition is not
Legal Reasoning
(5) CRA-156-2024.odt5.Having considered submissions advanced and after goingthrough record, it can be observed that original plaintiff wasreplaced by his legal representatives. His three sons, legalrepresentatives of pre-deceased son namely Pravin and wife werebrought on record of Writ Petition No.6037/2004. It is alleged thatduring pendency of writ petition, Pradip expired and this fact wasnot brought on record of writ petition. Therefore, decree has beenpassed in writ petition ignoring death of Pradip. 6.It is not in dispute that suit instituted by original plaintiffwas carried forward by his legal representatives. One of the legalrepresentative i.e. Pradip expired during pendency of writ petition.As such, validity of decree passed in writ petition in favour of deadperson is questioned. The issue is no more res-integra. TheSupreme Court of India in case of Delhi Development Authority(supra) observed that when suit is instituted in respect of jointlyowned property, even if co-owner dies and legal representatives arenot brought on record, right to sue would survive and co-owner cancontinue the suit. Reference can be given to paragraph no.9.4,which reads as under:“9.4 As observed and held by this Court in the case of K.Vishwanathan Pillai (supra), the coowner is as much anowner of the entire property as a sole owner of the property.No coowner has a definite right, title and interest in anyparticular item or a portion thereof. On the other hand, hehas right, title and interest in every part and parcel of thejoint property. He owns several parts of the composite (6) CRA-156-2024.odtproperty along with others and it cannot be said that he isonly a part owner or a fractional owner in the property. It isobserved that, therefore, one coowner can file a suit andrecover the property against strangers and the decree wouldenure to all the coowners. The aforesaid principle of lawwould be applicable in the appeal also. Thus, in the instantcase, when the original plaintiffs – two coowners institutedthe suit with respect to the entire suit land jointly owned bythe plaintiffs as well as defendants nos. 9 to 39 and whensome of the defendants/respondents in appeal died, it can besaid that estate is represented by others – more particularlythe plaintiffs/heirs of the plaintiffs and it cannot be saidthat on not bringing the legal representatives of the some ofthe cosharers – defendants – respondents in appeal theappeal would abate as a whole.”7.Similar view has been reiterated in case of RaquelFernandes (supra).8.In light of aforesaid legal position, first objection ofapplicants is not sustainable. 9.Second objection is regarding description of the property.Comparing the description of the property in the plaint withdescription shown in the registered Darkhast would depict thatdescription of the property is same. The property is not onlyidentified by four boundaries, but Municipal House Number andCity Survey Number are also mentioned. In that view of thematter, objection cannot be sustained. 10.Third objection raised is that there is non-compliance ofOrder XXI Rule 11(5) of the Code of Civil Procedure. Apparently, (7) CRA-156-2024.odtaforesaid provision has no application in the facts of the case. Thesubject decree is for delivery of vacant possession of the suitpremise and both the parties are directed to bear own cost. Thereis nothing to show that subsequent to decree there was anyadjustment between Judgment Debtors and Decree Holders.Therefore, such objection is not available to the applicants.11.Although Mr. Kulkarni submits that he has filed ReviewApplication against order dated 14.03.2019 in Writ PetitionNo.6037/2004, that itself cannot be treated as impediment forexecution of decree, unless that has been stayed by the Courtdealing with Review Application. 12. In that view of the matter, there is no merit in the CivilRevision Application and the same is dismissed.(S. G. CHAPALGAONKAR) JUDGE Devendra/November-2024
Arguments
(4) CRA-156-2024.odtproper. Four boundaries are not properly explained. Further,required information in terms of Order XXI Rule 11 (e) of the Codeof Civil Procedure is not stipulated in the petition. The ExecutionPetition is not supported by affidavit.4.Per contra, Mr. Bora, learned Advocate appearing for therespondents submits that present Revision Application is anattempt to protract execution of decree. He submits that there isno foundation in support of objections as raised. He would submitthat death of one of the co-owner is of no consequence in case ofexecution of decree in respect of joint ownership property andjudgment debtors cannot take disadvantage of the said fact. Hewould submit that description of the property is appropriatelymentioned in tune with the plaint. Further, there was noadjustment of decretal amount as contemplated under Order XXIRule 11(e) of the Code of Civil Procedure after passing of thedecree. Therefore, none of the objection is legally tenable. Insupport of his submissions he relies upon judgment of this Court incase of Raquel Fernandes Vs. Leopoldina Mendonca Pereira(Writ Petition No.734/2008 dated 11.12.2008) and judgment ofthe Supreme Court of India in case of Delhi DevelopmentAuthority Vs. Diwan Chand Anand and Ors.1.1(2022) 10 SCC 428.