1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1299 OF 2008 WITH CIVIL APPLICATION NO.1591 OF 2008 Pankaj Praveen Lanjekar & ors ..Appellants V/s Prakash Digamber Lanjekar & anr. ..Respondents Mr.Ajit Kenjale, Advocate, for the appellants Mr.G.S.Godbole i/b.Mr.Anurag Jain, Advocate, for the respondents CORAM : R.M.SAVANT, J. DATE : 24TH FEBRUARY, 2009 P.C. . This appeal takes exception to the Order dated 16th October, 2008, passed by the learned 3rd Joint Civil Judge, Senior Division, Satara by which order the application Exh.68 in Special Darkhast No.74 of 2006 filed by the appellants came to be rejected. 2. The appellants are the original Judgment Debtor Nos.1B to 1D in Special Darkhast No.74 of 2006. The respondent No.1 herein is 2 the Decree Holder and the respondent No.2 herein is the Judgment Debtor No.1A. One Sadanand Narayan Lanjekar had filed Special Civil Suit No.213 of 1980 in the Court of Civil Judge, Senior Division, Pune seeking partition. The said suit was compromised by filing a pursis to the effect that all the four branches of Late Narayan Vishnusheth Lanjekar had accepted that partition had taken place in the year 1942. The said Special Civil Suit No.213 of 1980 accordingly came to be disposed of and a compromise decree dated 9th December, 2004, came to be passed in the said suit. In terms of the said compromise decree, the respondent No.1 i.e. Decree Holder was entitled to the properties mentioned in Clause Nos.6 & 7 thereof. In terms of the compromise, the plaintiff No.1B Pankaj Pravin Lanjekar was to get fixed the valuation within a period of three months of the decree and the Sale Deed was to be executed in favour of the Decree Holder i.e.defendant No.11 within a period of six months thereafter. The respondent No.1 herein i.e.defendant No.11 was constrained to file the execution proceedings to get compromise decree executed as the appellants herein were not proceeding on the basis of the said compromise decree. The said execution proceedings were numbered 3 as Special Darkhast No.74 of 2006. The said execution proceedings were initially filed in the Court of Civil Judge, Junior Division, Pune which came to be transferred to the Court of 3rd Joint Civil Judge, Senior Division, Satara and numbered as Special Darkhast No.74 of 2006. 3. It appears that the appellants herein, who are Judgment Debtors had got the valuation of the property done in question on 23rd January, 2005. In so far as the property situated at Karad was concerned, it was valued at Rs.1,53,55,000/- and in so far as the property situated at Satara was concerned, it was valued at Rs.48,71,055/-. However, the appellants herein filed Valuation Report vide Exh.18 on 7th October, 2006, when the execution proceeding were transferred to the Satara Court. The respondent No.1 herein thereafter, submitted Draft Sale Deeds as per the decree passed in respect of the said two properties at Karad and Satara below Exhibits 69 & 70. The appellants herein thereafter, filed their objections to the Draft Sale Deeds on 6th October, 2008. The said objections were considered by the learned executing Court and by the impugned order 4 the said objections came to be rejected. 4. The executing Court whilst rejecting the said objections inter alia held that once, the valuation is fixed between the parties then the Court is bound to accept the valuation and enhancement of the prices cannot be a ground for re-consideration of the valuation. It is the case of the appellants that the Valuation Report was submitted on 7th October, 2006, and the Decree Holder has submitted the Sale Deeds in the year 2008, and therefore, the Decree Holder has not abided by Clause 7 of the Compromise Decree. On the other hand, it is contended by the learned counsel appearing for the respondent No.1 that though, it is the case of the appellants that they had obtained the Valuation Report on 23rd January, 2005, when the execution proceedings were in Pune Court, the Decree Holder was not called upon to deposit the amount in terms of the Valuation and therefore, it would not be open for the appellants to challenge the valuation on the said ground of the Sale Deeds being filed in the executing Court after two years i.e.in the year 2008. 5 5. It would be pertinent to note that the plaintiff No.1D has filed affidavits in the said Special Darkhast No.74 of 2006 both dated 29th November, 2007, wherein Clause 1 of the first affidavit she has stated that she has no objection to the deposit of Rs.29,40,325/- which is the value of the 25% share of the property at Karad which was valued at Rs.1,53,55, 000/-. By the second affidavit of the same date filed in the said Special Darkhast No.74 of 2006 she has stated that she has no objection to the Decree Holder depositing an amount of Rs.8,98,425/- which was 25% of the amount. Considering the said facts, in my view, the Trial Court was right that the principal objection of the Judgment Debtors was as regards valuation of the properties and therefore, the impugned order rejecting the said objection cannot be faulted with. 6. The learned counsel for the appellants submitted that the objections taken were not in respect of the valuation only but were also as regards Clause Nos.5, 8, 11 & 14 of the Sale Deed in respect of the property bearing CTS No.148 and Clause Nos.6, 9 and 12 of the Sale Deed in respect of CTS No.118/2B. It is the submission of 6 the learned counsel for the appellants that the said Clauses are not in sync with the Compromise Decree. 7. In so far as Clause No.5 of the 1st Sale Deed is concerned, the learned counsel submitted that since the Judgment Debtor No.1D is already in possession of 266.66 Sq.feet land to be conveyed to the Decree Holder was except the said land. The word “except” is appearing in paragraph 6 of the copy of the compromise decree annexed to the Appeal Memo after the word “premises”. The learned counsel for the respondent No.1 drew my attention to a certified copy of the compromise decree wherein the said word “except” is missing. Therefore, in so far as Clause 5 is concerned, there appears to be no merit in the contention of the learned counsel for the appellants at present; as there is a dispute as regards the existence of the word “except”. The objection to the said Clause 5 has been raised by the Appellants vide Clause (1) of their objections Exh.68. Therefore, it would be open for the appellants to apply to the Trial Court in that behalf, by drawing the Court's attention to the copy of the decree which they have in their possession. In so far as the other clauses 7 are concerned, Mr.G.S.Godbole, the learned counsel appearing for the respondent No.1 fairly conceded that in Clause 11 the last 7 lines of the said Clause “Ithapar” to “Pramane Rahil” can be deleted as also in Clause 14 the last two lines of that Clause from the word “Ti Chukichi” upto “Rahtil” can be deleted. Similar would be the deletion in Clause 9 and 12 of the Sale Deed relating to CTS No.118/2B and 118/3. The objection regarding Clause 8 in respect of the 1st Sale Deed relating to CTS No.148 and Clause 6 of the 2nd Sale Deed relating to CTS No.118/2B and 118/3, in my view, there is no merit in the objection to the said Clause as the said Clause merely states that if after the measurement if the area is found less, then the Judgment Debtor would return the excess amount to the Decree Holder i.e.respondent No.1 herein. 7. In my view, reasons mentioned by the executing Court whilst rejecting the application filed by the Appellants calls for no interference in the above Appeal. In view of the fact that the Clauses of the Sale Deeds in respect of which the Appellants had a grievance here have been suitably modified in view of the concession made by 8 the learned counsel for the respondent No.1 – Decree Holder, there is no merit in the appeal which is accordingly dismissed. 8. In view of the dismissal of the appeal, the Civil Application does not survive and the same is accordingly disposed of. 9. The appellants would execute an indemnity bond within a period of four weeks, if not already executed. 10. In case, the appellants file an application before the executing Court as regards the objection contained in Clause 1 of Exhibit 68 which has a bearing to the existence of the word “except” in the Compromise Decree, the said application should be decided by the concerned Court as expeditiously as possible and within a period of six weeks from the filing of the said application. (R.M.SAVANT, J.) 9