1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6130 OF 2010 Mohansing s/o Narsingh Bhansingh Rawat... PETITIONER VERSUS Kondyabai w/o Gyanobarao Khoraskar and another ... RESPONDENTS ..... Shri P.R. Katneshwarkar, Advocate holding for Shri S.P. Brahme, Advocate for the petitioner Shri Rajendra Deshmukh, Advocate for respondents ..... CORAM : R.M. BORDE, J. DATE : 4th October, 2010 PER COURT : 1. The petitioner herein is raising exception to the order passed by 3rd Jt. Civil Judge, Junior Division, Nanded on 23.6.2010, below Exh. 155, in Regular Darkhast No.73/2002. The application was presented by the petitioner (Judgment Debtor) requiring the Court to hold an enquiry and further to direct that the impugned decree cannot be executed unless and until the partition is effected by metes and bounds in respect of share of Judgment Debtor in the suit land and the execution of the decree is requested to be kept in abeyance till the holding of such an enquiry. The respondent (original plaintiff) presented a suit claim of redemption of mortgage of the suit property being Regular Civil Suit No.254/1991 against the two defendants. The said suit came to be decreed, against which an appeal being Regular Civil 2 Appeal No.35/1994 came to be presented by the Judgment Debtors herein (original defendants). However, the appeal came to be dismissed, against which a Second appeal was preferred bearing Second Appeal No.439/2002, which also came to be dismissed by the High Court. It is contended that, during the pendency of the appeal, a compromise was entered into between one of the Decree Holder and the Judgment Debtor (petitioner herein) and one of the Decree holders, and thereby he surrendered his rights in favour of Judgment Debtor. Argument is being advanced on the strength of the compromise effected between one of the Decree Holders and the Judgment Debtors to the effect that the decree passed in Regular Civil Suit No. 254/1991 is not executed. It also transpires on perusal of the order that the terms of compromise were not on record and at a subsequent stage of proceedings, the terms of the compromise petition are re-constructed and the decree is also drawn up in terms of the compromise recently in 2010. Although argument was advanced as regards the merits of the decree passed in faovur of the Decree Holder on the strength of the compromise decree allegedly entered into at the first appellate stage, this Court refused to cause interference in the Second Appeal. So also, this Court, while dealing with the Second Appeal, refused to take cognizance of compromise and dismissed the appeal. A review application being Civil Application (Stamp) No. 11435/2008 was presented seeking review of the order passed in 3 Second Appeal No.439/2002. The petitioner herein, on the strength of the compromise petition, contended before the District Court that, by virtue of compromise petition at Exh. 44, one of the Decree Holders have given up the half share in favour of Mohansing and this aspect was overlooked. Therefore, it was urged that the order passed by the High Court in Second Appeal No.439/2002 need to be reviewed. The High Court has dealt with the aspect while dealing with the review application. In para No. 8 of the judgment, it is observed that : “ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . This Court has not stated that there was no compromise petition at all filed by the defendant Mohansing and original Plaintiff No.2” 2. On perusal of the order passed by this Court in Review Application, it is evident that, this Court has taken into consideration the situation even on face of the availability of compromise decree on record and observed that the remedy available to the purchaser is to seek relief of partition and that the execution proceedings cannot be interfered with by defendant Mohansing on the strength of the compromise. It was also observed that option is available for the Judgment Debtor to file a separate suit for partition and separate possession to the extent of ½ share, which he claims to have secured from one of the Decree Holders. 4 3. It is also pointed out that, in pursuance of the observations made by this Court in Review Application, Special Civil Suit No.27/2007 is presented in the Court of Civil Judge, Senior Division, Nanded and the same is pending. In the pending suit, the petitioner herein has claimed a decree of partition and separate possession of share admissible to original defendant No.2 in land Survey No.4. The petitioner herein has also claimed a declaration that the judgment and decree passed in Regular Civil Suit No.254/1991 dated 27.12.1993 to the extent of original defendant No.2’s half share be declared as not binding upon the petitioner herein. It thus appears that, a substantive remedy of presenting suit has been availed by the petitioner. The counsel appearing for the petitioner contended that, after presentation of the suit, proceedings were taken up after re-construction of record in respect of compromise decree passed by the first appellate Court in Regular Civil Suit No.35/1994. It is contended that the record is re-constructed and a decree has been drawn only on 3.4.2010. It is contended that, in view of the subsequent developments, the proceedings in respect of execution of decree passed in Regular Civil Suit No.254/1991 needs to be stayed. Reliance is placed on the judgment of the Apex Court in the matter of Jagadish Dutt Vs. Dharam Pal (1999 DGLS (Soft.) 431. Placing reliance on the observations made by the Apex Court in paragraph No.7 of the judgment, it is contended that, it is for the decree holder to take up appropriate remedy and present suit 5 seeking partition. The observations of the Apex Court noted in paragraph No.7 of the judgment are essentially in the matter wherein a decree is passed in respect of the joint family property and one of the coparcener having title in the property having undivided share in the property, transfers the share in favour of one of the judgment debtor. The observations made in paragraph Nos.6 and 7 of the judgment are essentially in respect of the facts and circumstances of that case and even if these observations are taken into account, same cannot be made applicable in the instant matter. The petitioner herein (original judgment debtor) has already taken recourse to the remedy of filing of suit in the form of Special Civil Suit No.27/2007 and as such, the controversy raised by him shall have to be determined in the said suit after receiving the evidence that may be led by the parties. The executing Court was justified in turning down the application presented by the petitioner (judgment debtor) on consideration of the observations made by this Court while disposing of the review petition. Therefore, the order passed by 3rd Jt. Civil Judge, Junior Division, Nanded on 23.6.2010 below Exh.155 in Regular Darkhast No.73/2002, the same does not call for interference in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. It would be open for the petitioner (original judgment debtor) to tender appropriate applications with a view to safeguard his interest and it would also be open for the Court to consider those applications in 6 accordance with provisions of law. Writ Petition stands rejected. 4. The counsel appearing for the petitioner requests for continuation of the interim protection granted by this Court for a further period of four weeks. The counsel appearing for respondents resisted the prayer made for continuation of the interim relief, contending that the compromise decree itself is doubtful and shall have to be construed as a fraud on the Court. It is contended that, the decree holders are of advanced age of more than 90 years. It is also contended that, the decree is passed in a suit presented in 1994. Considering all these aspects, I do not think it appropriate to extend the interim protection. Request made by the counsel for petitioner stands rejected. R.M. BORDE JUDGE fmp/wp6130.10