1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 185 of 1988 Sonabai alias Kartarkaur w/o appellant/orig. Dharamsingh Artiya objection petitioner VERSUS (1) Smt.Nashitkarkaur Balwantsingh (2) Gurudeepsingh s/o Balwantsingh (3) Gurujeetkaur d/o Balwantsingh (4) Anitkaur d/o Balwantsingh, (5) Hardeepsingh Balwantsingh, age 13 years, both under guardianship of real mother Deft. No.1. (6) Babusingh s/o Bukansingh, deceased per L. Rs.- (7) Smt. Nasimkaur Babusingh, (8) S.Narendersingh s/o Babusingh (9) S.Gurumitsingh Babusing, age 17 years, (10) Manjitsingh Babusingh, age 14 years, (11) Shammisingh s/o Babusingh age 9 years, (12) Ranikaur d/o Babusisngh, age 6 years, All under guardianship of real mother Defendant No.7 Nasimkaur 2 w/o Babunsisngh, all resident of Nanded. (13) Dharamsingh Gulabsingh, age 52 years, occupation agriculture, resident of Respondents/ Nanded. orig. Resps. ------------------------------------------------------ Shri Parikshit Dahalkar, Advocate, holding for Shri P.R.Deshmukh, Advocate, for the appellant. None for the Respondents. ------------------------------------------------------ Coram: P.R. Borkar, J. Date : August 29, 2009 ORAL JUDGMENT 1. This second appeal is preferred by original obstructionist in Regular Darkhast No. 20 of 1983 being aggrieved by the order passed by executing court on 4.4.1987 granting police aid for delivery of possession, which decision was further confirmed in Regular Civil Appeal No. 95 of 1987 by III Additional District Judge, Nanded decided on 15.2.1988. 2. Briefly stated, one Balwantsingh and Balusingh, who are now represented by Respondent Nos. 1 to 12, were the original plaintiffs. They filed Special Civil Suit No. 3 55 of 1971 for specific performance of the contract and possession. The decree was passed and thereafter Regular Darkhast No.20 of 1983 was filed for execution. In the said Darkhast, sale deed was executed through court commissioner and later on possession warrant was issued. When the bailiff went for execution of warrant on 3.4.1987, the present appellant who is wife of Dharamsingh-original Defendant, obstructed and thereafter decree holder filed application for police protection and accordingly order came to be passed on 4.4.1987. As against the said order, appeal was filed in the District Court and the learned Additional District Judge, after considering various grounds raised, dismissed the appeal and it is this order of the District Court which is challenged in the second appeal. 3. The second appeal is admitted on substantial questions of law stated in ground Nos. 4 and 10 of the appeal memo which are as follows; "4. The Lower Court ought to have held that the order of affording 4 police help to the decree holder without hearing the Petitioner and ousting the Petitioner and her tenants from the disputed properly without hearing them or without affording them an opportunity of being heard is a nullity. 10. The scheme of the provisions contained in Rules 97 to 100 would disclose that they do not afford any relief of the stranger to the decree to seek the relief from the Court before getting dispossessed in execution of the impugned decree. " 4. Heard Shri Parikshit Dahalkar, learned Advocate for the appellant. No one is present for the Respondents. Learned Advocate Shri Dahalkar pointed out to me Rules 97,98 and 101 of Order 21 of Code of Civil Procedure, 1908 and submitted that whenever there is obstruction, the court ought to enquire into it. In this case it does not appear that the present appellant - obstructionist has filed any application raising objection to delivery of possession, nor does it appear that any 5 application under Rule 97 of Order 21 was made. It is also a fact that the court did not issue notice to the present appellant and enquired. Ordinarily, the court is expected to adjudicate rights of the obstructionist if appropriate application is filed. However, in the facts of this particular case, the present appellant-obstructionist is wife of the defendant-judgment debtor and as ground No. 5 of appeal memo before the District Court discloses, it is the say of of present appellant that on the day of Gudi Padva of 1968, there was partition of property between Respondent No.13 Dharamsingh, his sons and present appellant (who is wife of Dharamsing) and the disputed land was allotted to the appellant and it was in her custody. In paragraph 9 of its judgment, the District Court observed that the present appellant had also filed suit for injunction against the decree holders in respect of the same property and that suit was contested. The appellant- plaintiff in that suit did not get any order of temporary injunction. After she was dispossessed on 5.4.1987, she did not file any application under Order 21, Rule 99 of C.P.C. After dispossession, she straightway filed 6 appeal in the District Court bearing R.C.A. No.95 of 1987 and against dismissal of the same, she has filed present second appeal alleging that the execution was bad and illegal. It was observed by the District Court that in the Darkhast proceedings, the judgment debtor Dharamsing (Respondent No.13) has filed objection (Exh.10) wherein he brought to the notice of executing court that the suit property was allotted to the share of present appellant Sonabai by way of partition that took place in 1968. This objection was decided on 31.12.1983 by the executing court. Against said decision, Balvir Kaur, who was party to the partition, had taken up the matter upto the Supreme Court, but without any success. Thus, the question whether there was partition in 1968 and whether the property was not belonging to the judgment debtor was finally decided. 5. Learned District Judge further observed in same para 9 that the present appellant Sonabai was stepping into the shoes of judgment debtor and was claiming to be owner of the property. She did not claim right to suit property otherwise than by partition. 7 The judgment debtor had taken objection that the property was allowed to her share and that objection was finally decided. In this view of the matter, the same issue cannot be again raised by the appellant. The District Court cannot be said to have committed any error of law in dismissing the appeal in the peculiar facts of the case. The case clearly falls under Rule 928(2) of Order 21 of C.P.C. 6. Secondly, the second appeal itself is not tenable against the order of the District Court as the impugned order of Executing Court which was challenged before the District Court, was not a decree. 7. In the result, second appeal is dismissed. pnd/sa185.88 (P.R.BORKAR, J.)