1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 533 OF 2007 WITH MISCELLANEOUS CIVIL APPLICATION NO.453/2009. Smt. Manisha Ravindra Gadekar, Of major age, house wife, resident, Of House No. 30/A/13, Grand Morod, Mapusa, Bardez- Goa. .. Petitioner Versus 1. Shri Shrikrishna Devu Gadekar, major of age and his wife 2. Mrs. Radha Shrikrishna Gadekar, major of age, married, housewife, both resident of House No.30/A/13, Grand Morod, Mapusa, Bardez- Goa. 3. Shri Ravindra Devu Gadekar, Major of age, married, Service, Resident of House No.30/A/13, Grand Morod, Mapusa, Bardez- Goa. .. Respondents. Mr. D. J. Pangam, Advocate for the petitioner. Mr. Valmiki Menezes, Advocate for the respondent Nos. 1 and 2. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE JUDGMENT : 28 th August, 2009 . DATE OF PRONOUNCING THE JUDGMNET : 04 th September, 2009. 2 JUDGMENT : 1. Rule, returnable forthwith. Heard by consent of the parties. 2. This is a petition seeking writ of certiorari quashing the order dated 1.3.2007 passed by the learned Civil Judge, S.D, B Court, Mapusa in Execution Application no.50/2003/D/C moved under Order XXI Rule 97, 101 of the Code of Civil Procedure, 1908. The petitioner being sceptical about the maintainability of this writ petition, has also preferred an application, being M.C.A. No.453/2009 for conversion of this writ petition into an appeal. 3. Controversy arises over the right, title, interest and consequent possession of the portion of first floor, particularly northern portion consists of dining room, two bed rooms, kitchen, gallery admeasuring 51 sq. metres, of the house bearing No.30/A/13 standing on landed property bearing Chalta No.49, P.T. Sheet No.175 at Grand Morod, Mapusa, Goa. It all began with the institution of a Special Civil Suit No.70/1993/A later on numbered as R.C.S. No.268/2000/D for specific performance of an agreement 3 with consequential reliefs by the respondent No.3 Ravindra Devu Gadekar herein, the husband of the petitioner- Manisha against his brother Mr. Shrikrishna Devu Gadekar and his sister-in-law Mrs. Radha Shrikrishna Gadekar, the respondent Nos. 1 and 2 herein respectively. The respondent No.3 sought specific performance of oral agreement with the plaintiff in respect of the said first floor premises. The respondent Nos. 1 and 2 resisted the claim of the respondent No.3/ plaintiff with the written statement and further made a counterclaim seeking declaration of ownership in respect of entire house property along with land and possession of the said first floor premises particularly its northern portion. Consequential relief of injunction prohibiting any interference in their proprietory rights in respect of the said house property was also sought by the respondent Nos. 1 and 2 in the said suit as and by way of her counterclaim. The respondent Nos. 3's suit was dismissed, and judgment and decree allowing the counterclaim made by the respondent Nos. 1 and 2 came to be passed in December, 2002. 4. The petitioner Manish Gadekar stepped in the Execution Proceedings initiated for taking possession of the said first floor premises with an application purportedly 4 made under Order XXI, Rule 26, 29, 97, 100, 101, 103, 104, 105 read with Section 47, 151 of Civil Procedure Code, 1908 for (i) her intervention in the Execution Proceedings, (ii) invoking provisions of Order XXI, Rule 97 of Civil Procedure Code to initiate enquiry into her right, title and possession, and (iii) staying the Execution Proceedings. She tendered before the Executing Court marriage certificate to establish her marital relationship with the respondent No.3 Ravindra, the Judgment Debtor and a copy of the judgment and decree dated 30.12.2002. She made grievance that upon her marriage with the respondent No.3, she became half share holder in the communion of assets of Judgment Debtor – her husband and she had been staying in the said house property acquired and constructed by father-in-law late Divu Gadekar since her marriage in the year 1983 and the first floor premises were constructed by her husband and the respondent No.1 Shrikrishna; and yet the decree in execution came to be passed without hearing her in the said suit. Her application was resisted by the Decree Holders- the respondent Nos. 1 and 2 with reply dated 29.06.2006. The reply was rejoined by the petitioner. The impugned order reveals that parties tendered their written submissions as well as made oral submissions and the impugned order 5 rejecting the said application came to be passed thereafter. 5. The respondent Nos. 1 and 2 have taken exception to the maintainability of this writ petition on the ground that the impugned order which has force of a decree as per Rule 103 of Order XXI of Civil Procedure Code, ought to have been appealed against and not proceeded against by preferring a writ petition of the kind presently before this Court; and, therefore, there being alternative remedy of appeal available to the petitioner, the present writ petition is not maintainable. While answering this exception, the learned Advocate Pangam for the petitioner argued that the learned Executing Court without adjudicating the issues involved particularly the questions raised by the petitioner as to her right, title and interest in the said premises, as per Rule 105 of Order XXI of Civil Procedure Code rushed to reject the application moved by the petitioner; and, therefore, the impugned order is not an order as conceived under Rule 103 of Order XXI of C.P.C. requiring making of an appeal against the same for throwing challenge to it. The only remedy that was available to the petitioner in such circumstances was the remedy in writ jurisdiction and, therefore, he argued, the present writ petition is 6 maintainable. In making the submissions the learned Advocate Pangam for the petitioner took this Court through the relevant provisions namely Order XXI, Rule 97 to Rule 105 of C.P.C. and pointed out from the impugned order the following concluding remarks made by the Executing Court : “Hence, in my opinion, since the applicant has failed to show any independent right prima facie, there is no requirement of holding an enquiry in the matter. Hence, I pass the following order ......” This, the learned Advocate Pangam submitted, shows that the Executing Court did not adjudicate into the questions raised by the petitioner in respect of right, title and interest in the property. The learned Advocate Menezes for the contesting respondent Nos. 1 and 2 submitted that the parties were heard and there was expression of answers to all the questions raised by the petitioner in her application in the impugned order and only thereafter, the application came to be dismissed; and therefore, the order passed rejecting the application of the petitioner deserves to be treated as an appeallable decree. 6. Rule 103, Order XXI of C.P.C. reads as under : 7 “Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.” A question, therefore, arises whether there was any adjudication of the application made by the petitioner. Rule 105, Order XXI of C.P.C. broadly lays down the procedure for hearing of the application made under the foregoing rules, namely Rule 97, 99. The petitioner has not shown that the procedure as envisaged under Rule 105 was contravened in any manner whatsoever. Instead, it appears from the record that the parties were heard and the impugned order came to be passed thereafter on considering the application, replies and the written submissions/ written statements made therein. The impugned order reveals references to the rival pleadings and the assertion made by the petitioner to a right, title, interest in the said first floor premises as a half sharer in the communion of the assets of the Judgment Debtor by her marriage to him. The learned Executing Court, the impugned order reveals, did give thought to these material assertions regarding the alleged right, title, interest of the petitioner in the said premises with reference to the relevant judicial precedents – 1991(2)Goa Law Times 237, Zoirambi 8 Muzawar Versus Cirilo Antonio Conceicao Heitor Peres and 2000(2) Goa Law Times 472 Corina Cota Versus John Joseph Noronha. Only after such exercise, it appears, the learned Executing Court made observations, that the applicant had failed to show any independent right prima facie. 7. 'To adjudicate' means to hear or try and determine as a Court or to adjudge. This meaning finds place in the celebrated work of P. Ramnatha Aiyar's Law Lexicon Dictionary, Second Edition, Reprint 2004. In the instant case, the record clearly reveals that the parties were heard and the Court did determine the questions raised by the petitioner in respect of her right, title and interest in the said premises, expression of which found in the impugned order. No perversity is pointed out in the judicial act of passing the impugned order. What happens as a result of such determination/ adjudication of right, title and interest of the contending party, gets the force of decree as envisaged under Rule 103, Order XXI of C.P.C. All other exception taken to such impugned order can be or ought to be taken by preferring an appeal against such order. Having failed to take recourse to the definite remedy under Statute, the petitioner cannot maintain the present petition for writ of 9 certiorari or for such other writ under Constitution unless some perversity in passing such order is pointed out. 8. As regards the application for conversion of the present writ petition into an appeal, it is pointed out from the record by the learned Advocate Menezes for the contesting respondent Nos. 1 and 2 that an appeal against the impugned order dated 1.3.2007 has been miserably time barred and the present writ petition was also preferred after considerable laps of time i.e. on 4.10.2007; and, therefore, the conversion of this writ petition into an appeal would only give existence to an appeal, which is not maintainable by law of limitation unless the delay in preferring the appeal is duly condoned after giving opportunity to the contesting parties to question the cause shown for condoning such delay. To this, the learned Advocate Pangam for the petitioner had little to answer except making a submission that time was lost due to the legal advice obtained by the petitioner and prosecuting the present writ petition in good faith on the basis of such legal advice. May be the petitioner will have 'sufficient' cause to show for condoning the delay in preferring the appeal against the impugned order, the findings thereon cannot be given at this stage without affording an 10 opportunity to the contesting parties to question such cause. Secondly, it would be atrocious to convert this writ petition into an appeal and thereby give existence to something, which is not maintainable by law it being hit by the provisions of law of limitation. 9. In the result, both the writ petition and M.C.A. for conversion of the writ petition into an appeal must fail. Rule discharged. M.C.A. No.453/2009 stands rejected. No order as to costs. U. D. SALVI, J. SMA