1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 599 OF 2003 1. Mrs. Lauriana Fernandes e Diniz, aged 67 years, wife of late Piedade Caetano Diniz alias Pedro Caetano Diniz, resident of Xeldem, Quepem Goa. 2. Mrs. Anastasia Diniz, major in age, represented by Power of Attorney, Luciana Diniz, ( Deceased and legal representatives already on record as petitioner nos. 1 & 3 ). 3. Ms. Luciana Diniz, Major in age, daughter of late Piedade C. Diniz, resident of Xeldem, Quepem Goa. … Petitioners V e r s u s 1. Mrs. Maria Piedade Fernandes alias Maria Piedade Diniz, widow of Jose Diniz, aged about 73 years, 2. Mr. Peter Diniz alias Peter Fernandes, son of late Jose Diniz, major in age, and his wife, 3. Smt. Socorina Diniz alias Sucorina Fernandes, major in age, daughter in law of late Jose Diniz, 4. Smt. Francisca Diniz e Mascarenhas, major in age, daughter of late Jose Diniz, and her husband, 2 5. Shri Rosario Mascarenhas, major in age, son in law of late Jose Diniz, All residents of House No.551/1, Canconmordy, Xeldem, Quepem Goa. 6. Shri Edmund Diniz, aged about 52 years, and his wife, 7. Smt. Philomena Diniz, aged about 50 years, Both residents of House No.551/2, Canconmordy, Xeldem, Quepem Goa. 8. Mrs. Nickel Fernandes alias Nicaela Fernandes, widow of Domicio Diniz, resident of House No.130, behind Saraswati Temple, Tisca, Ponda Goa. 9. Mr. Henry Diniz alias Henry Especiano Diniz, married, son of late Domicio Avelino Diniz alias Domnic A. Diniz also known as Domis Diniz, and his wife. 10. Mrs. Serafina Diniz, Both residents of House No. 558, Santa Cruz, Xeldem, Quepem Goa. 11.Mr. Marcos Diniz, Major in age, married, son of late Domicio Avelino Diniz, and his wife. 12.Mrs. Piety Diniz, Both residents of House No.130, behind Saraswati Temple, Tisca, Ponda Goa. 3 13.Mr. Clifford Diniz, bachelor, son of late Domicio Avelino Diniz, resident of House No.130, behind Saraswati Temple, Tisca, Ponda Goa. 14.Mr. Agnelo Diniz alias Agnelo Luciano Jose Diniz, Major in age, widower of Margarida Diniz alias Margareth Pereira & Diniz also known as Margareth Diniz, resident of House No.569, Diniz Bar, Canconmordy, Xeldem, Quepem Goa. 15.Fr. John Agnelo Diniz, major in age, son of Agnelo Diniz, resident of House No.569, Diniz Bar, Canconmordy, Xeldem, Quepem Goa. 16.Mr. Mauricio Diniz, major in age, son of Agnelo Diniz, married, and his wife, 17.Mrs. Suzanne D'Souza e Diniz, Both residents of House No. 569, Diniz Bar, Canconmordy, Xeldem, Quepem Goa. 18. Mr. Simon Diniz, major in age, son of Agnelo Diniz, 19. Mr. Pulav alias Plus Diniz also known as Placido, major in age, 20. Mrs. Pulav alias Ladislau Diniz, major in age, 21. Mr. Yudis Diniz, major in age, 4 son of Agnelo Diniz, and his wife, 22.Mrs. Valuda Yudis Diniz, major in age, 23.Mrs. Serafina Diniz e Rodrigues, major in age, daughter of Agnelo Diniz, and her husband. 24. Mr. Edwin Rodrigues, major in age, son in law of Agnelo Diniz, 25. Mr. Esikel Diniz, major in age, son of Agnelo Diniz, respondent nos. 14 to 25 are residents of House No.569, C/o Diniz Bar, Canconmordy, Xeldem, Quepem Goa. 26.Mr. Raul Diniz alias Raul Xerafino Diniz, major in age, son of Joao Especiano Diniz, married and his wife ( Since deceased through Lrs) 26a) Mr. Glenn Raul Diniz, major in age, married (son of deceased Mr. Raul Diniz), and his wife, 26b) Mrs. Maria Glenn Diniz, major in age ( daughter in law of deceased Mr. Raul Diniz ) 26c) Mr. Orlando Diniz, major in age ( son of deceased Mr. Raul Diniz) and his wife, 5 26d) Mrs. Jully Orlando Diniz, major in age, ( daughter in law ) of deceased Mr. Raul Diniz, 26e) Mr. Agustinho Raul Diniz, major in age ( son of deceased Mr. Raul Diniz) and his wife, 26f)Mrs. Analyn Agustinho Diniz, major in age ( daughter in law of deceased Mr. Raul Diniz ), 26g) Miss Martha Diniz, major in age ( spinster daughter of deceased Mr. Raul Diniz) All residents of House No.552, Canconmordy, Xeldem Taluka Quepem Goa. 27.Mrs. Maria Angelita Diniz, major in age, Both residents of House No.552, Canconmordy, Xeldem,Quepem Goa. 28.Mrs. Natalina Diniz, major in age, widow of Longuinho Diniz, resident of House No.19, No Bairo Igreja de Tilamol, Xeldem, Quepem Goa. 29.Mr. Raimond F. X. Diniz, major in age, son of late Longuinho Diniz, and his wife 30.Mrs. Adelina Diniz, major in age, 31.Mr. Mario Diniz, major in age, son of late Longuinho Diniz, 32.Mr. Lucio Diniz, major in age, married, 6 son of late Longuinho Diniz, and his wife 33.Mrs. Lucio Diniz, major in age, 34.Mr. Ivo Diniz, major in age, son of late Longuinho Diniz, 35.Mr. Aleluia Diniz, major in age, son of late Longuinho Diniiz and his wife 36.Mrs. Alvita Diniz, major in age, All respondent nos. 28 to 36 are residents of House No.19, No Bairo Igreja de Tilamola, Xeldem, Quepem Goa. … Respondents Mr. D. Pangam, Advocate for the petitioners Mr. Sudesh Usgaonkar, Advocate for respondent nos. 1 to 3, 6 to 27. CORAM : F. M. REIS, J DATE : 20 th SEPTEMBER, 2011 . ORAL JUDGMENT Heard Shri D. Pangam, learned Counsel appearing for the petitioners and Shri Sudesh Usgaonkar, learned Counsel appearing for respondent nos. 1 to 3, 6 to 27. 7 2. By the above petition, the petitioners challenge the order dated 20.09.2003 passed by the learned Civil Judge Senior Division, Quepem, in Special Execution Application No. 16/2002/A whereby an application for execution filed by the petitioners to execute the decree dated 12.11.1990 came to be dismissed. 3. Shri D. Pangam, learned Counsel appearing for the petitioners has assailed the impugned order on the ground that the learned Judge has exercised its discretion with material irregularities in dismissing the said execution proceedings as if the learned Judge was sitting in appeal against the decree passed in favour of the petitioners. The learned Counsel pointed out that it was not open for the learned Judge to consider the merits of the claim of the petitioners which have been finally adjudicated in the said decree dated 12.11.1990. The learned Counsel further submitted that the correctness of the said decree could not be gone into in the execution proceedings as according to him it is well settled that the executing Court cannot go behind the decree. The learned Counsel further pointed out that by the decree passed in favour of the petitioners, the reliefs which are granted besides the declaration and demolition of some 8 construction, a permanent injunction in favour of the petitioners. The learned Counsel further pointed out that the learned Judge has summarily dismissed the execution proceedings on the ground that the judgment and decree being executed was a non speaking order. The learned Counsel further pointed out that the petitioners were non suited in the said proceedings on the ground that earlier application was also filed by the petitioners which came to be withdrawn. The learned Counsel further submitted that the learned Judge has exceeded its jurisdiction in dismissing the execution proceedings and as such the impugned order cannot be sustained and deserves to be quashed and set aside. 4. On the other hand, Shri S. Usgaonkar, learned Counsel appearing for the respondent nos. 1 to 3, 6 to 27 has pointed out that the suit came to be decreed only against the original defendant nos. 1, 3, 8, 9, and 11 by judgment and order dated 12.11.1990. The learned Counsel further submitted that by a subsequent application filed by the petitioners in the suit, the original defendant nos. 1, 2, 4, 5 6, 7, 10 and 12 came to be deleted. The learned Counsel further pointed out that the said defendants who have been deleted 9 are respondent nos. 1, 7, 8, 14, 27 and 28. The learned Counsel further submitted that considering the relationship between the said respondents with other respondents, the decree cannot be executed as they are spouses of the original judgment debtors. The learned Counsel further pointed out that in the reply filed to the execution proceedings, it was the contention of the said respondents that the decree could not be executed as there was no such decree against the said respondents. The learned Counsel as such submitted that the execution proceedings cannot proceed in the absence of said respondents. Shri Pangam, the learned Counsel in reply to the submissions of the learned Counsel appearing for the respondents has pointed out on perusal of the records that there was no decree against the said respondent nos. 1, 7, 8, 14, 27 and 28. 5. Having heard the learned Counsel for the parties and on perusal of records, I find that Shri S. Usgaonkar, learned Counsel appearing for the respondent nos. 1 to 3 and 6 to 27 is justified to contend that there is no decree against the respondent nos. 1, 7, 8, 14, 27 and 28. As such the petitioners were not entitled to file the execution proceedings against the said respondents. But however as far as the 10 remaining respondents are concerned, admittedly there was a decree passed by the learned Judge granting all the reliefs claimed by the petitioners in the suit. Considering the said aspect, it was not open to the learned Judge to refuse to execute the said decree on the spacious ground that the judgment is a non speaking order. Once the decree stands unless and until the same is modified or quashed in accordance with law, it is not open for the executing Court to ascertain whether there was any justification for passing such decree. The objections to a decree are limited and it is open to the judgment debtor to raise objection with regard to the executability of the decree by filing an application under the provisions of the Civil Procedure Code. Shri S. Usgaonkar, learned Counsel appearing for the said respondents against whom no decree is passed has stated that the said respondents had filed a reply in the execution proceedings opposing the execution of the said decree against them. I find that the said procedure cannot be accepted as in case any third party wants to raise an objection to the effect that the decree cannot be executed against him, he is entitled to file an application under Order 21 Rule 97 of CPC which would have to be decided on its own merits by the learned Judge in accordance with law. 11 6. As such on perusal of the impugned order, I find that the learned Judge was not at all justified to dismiss the execution proceedings on the ground referred to in the impugned order. Consequently, the impugned order cannot be sustained. But however the respondent nos. 1, 7, 8, 14, 27 and 28 would be entitled to file an appropriate application under the provisions of the Civil Procedure Code, opposing the execution of the decree if they are so entitled in accordance with law. Subject to such reservation in favour of the said respondent nos. 1, 7, 8, 14, 27 and 28, the impugned order cannot be sustained and deserves to be quashed and set aside. 7. In view of the above, I pass the following : O R D E R (i) The impugned order dated 20.9.2003 is quashed and set aside. (ii) The Special Execution Application No. 16/2002/A is restored to the file of the learned Civil Judge Senior Division, Quepem, (iii) The respondent nos. 1, 7, 8, 14, 27 and 28 are at liberty to file an appropriate application under the provisions of the CPC 12 opposing the execution proceedings in accordance with law. (iv) The learned Judge shall proceed to decide the said proceedings in the light of the observations made herein above in accordance with law. (v) All the contentions of both the parties on merits are left open. (vi) Rule is made absolute in above terms with no order as to costs. F. M. REIS, J at*