1 WP-9828.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9828 OF 2011 Shri Rikabchand Achaldas Oswal : Petitioner versus Shri Ramvilas Gangabisan Heda Since Deceased through Lrs Smt.Rukmabai Ramvilas Heda & ors. : Respondents. Mr.P R Arjunwadkar for the Petitioner. CORAM : R M SAVANT, J. DATE : 22nd November 2011 P.C. 1 The above Petition takes exception to the order dated 27/9/2011 passed by the learned Civil Judge, Senior Division, Kolhapur by which order the Application Exhibit 240 for correcting cause title of the final decree proceedings so as to bring on record the names of the heirs of original Decree Holder Ramvilas Gangabisan Heda came to be allowed. This is an unfortunate case wherein the decree passed as long as back on 18/1/1972 for redemption of mortgage and for handing over the possession in Special Civil Suit No.78 of 1969 is still awaiting its execution. 2 As indicated above, the preliminary decree was passed as long back as on 18/1/1972. Thereafter final decree proceedings commenced some time in the year 1975 and were dismissed on the ground of limitation. This had resulted in filing of Civil Revision Application by the Decree Holder. It appears that immediately thereafter the Decree Holder Ramvilas Gangabisan Heda died 2 WP-9828.11.sxw resulting in the heirs being brought on record in the said Civil Revision Application. The said Civil Revision Application was allowed by this Court and the final decree proceedings were accordingly restored. This had resulted in the Judgment Debtor approaching the Apex Court by way of a SLP. The said SLP, it appears, was dismissed, resulting in the final decree proceedings being re-commenced. On account of the death of the Decree Holder, an Application was filed by the heirs which was numbered as Exhibit-168 to amend the final decree proceedings by substitution of the original Decree Holder by the heirs. The said Application was allowed on 29/7/2004. The said order has become final inasmuch as the Judgment Debtor has not challenged the same. It appears that on 9/10/2003 the Judgment Debtor has filed an Application Exhibit-160 on the ground that the final decree proceedings have abated in view of the fact that the heirs of the original Decree Holder were not brought on record. The said Application, according to the learned counsel for the Petitioner/Judgment Debtor is as yet pending, and in the mean time, Application Exhibit-168 filed by the heirs of the Decree Holder came to be allowed. 3 It appears that in spite of the order passed on Exhibit-168 on 29/4/2004, amendment in the cause title was not carried out in terms of the said order. The heirs therefore filed an Application Exhibit-240 to comply with the order passed on Exhibit-168. The said Application was objected to by the Petitioner herein i.e. the Judgment Debtor inter alia on the ground that the 3 WP-9828.11.sxw provisions of Rules 3 and 4 of Order 22 of the Code of Civil Procedure are not applicable to the execution proceedings in view of Rule 8 of the said order. The Executing Court dealt with the said contention of the Petitioner, and as indicated above by the impugned order has allowed the said Application Exhibit-240 by overruling the said objection. 4 The learned counsel Shri Arjunwadkar appearing for the Petitioner reiterates the Petitioner’s case before the trial Court that in view of non- application of Rules 3 and 4 of Order 22 of the CPC to the execution proceedings in the light of the fact that the amendment was not carried out, the said proceedings have abated, as the heirs of the Decree Holder were not brought on record. The learned counsel for the Petitioner would rely upon the Judgment of a Division Bench of this Court reported in 1987 Mh. L. J 30 in the matter of Bashiruddin Khwaja Mohiuddin v/s Binraj Murlidhar Shop Malkapur by Partners and ors. and the judgment of a learned Single Judge of this Court reported in 2001(3) Mh.L.J. 53 in the matter of Annasaheb Rajaram Nagane and anr v/s. Rajaram Maruti Nagane and ors. In so far as the Judgment of the Division Bench of this Court is concerned, it has been held by the Division Bench in the said Judgment that the final decree proceedings are continuation of the preliminary decree proceedings, and unless the final decree proceedings are finally disposed of, there is no executable decree. This was in the context of the Application under Section 47 filed in the said proceedings. In so far as the judgment of a learned Single Judge is concerned, 4 WP-9828.11.sxw in the said Judgment, the learned Single Judge has held that the preliminary decree for partition cannot be made effective without there being a final decree. 5 In my view, the said judgments would have no application in the facts of the present case. It cannot be gainsaid that the final decree proceedings are continuation of the preliminary decree proceedings and also the decree for partition cannot be made effective without there being a final decree. However, the facts of the present case as narrated above disclose that the Application Exhibit-168 for substituting the original Decree Holder by his heirs was allowed as long as back on 29/7/2004, and what remained was only the correction of the cause title. Merely because the cause title has not been corrected, it cannot be said that the heirs would not be entitled to prosecute the said final decree proceedings, notwithstanding the fact that the Application filed by them for substitution has been allowed. In my view, assuming that Rules 3 and 4 of Order 22 of the CPC are not applicable, it would not make any material difference, in the light of the fact that the Application Exhibit-168 for substitution of the Decree Holder by the heirs was already allowed on 27/9/2004. It is not a case that by Application Exhibit-240 the heirs were sought to be brought on record for the first time. 6 The contention of the learned counsel for the Petitioner that without deciding Application Exhibit-160 filed by the Petitioner, Application 5 WP-9828.11.sxw Exhibit-240 filed by the heirs of the Decree Holder could not have been allowed, cannot be accepted. It is required to be noted that Exhibit-168 filed by the heirs was allowed as long back as on 27/9/2004, since the Petitioner had filed Exhibit 160, according to the learned counsel on 9-10-2003 that is prior to Exhibit-168, the Petitioner ought to have objected to the adjudication of Exhibit-168 which was decided on 27/9/2004, having not done so, the said contention is not available to the Petitioner. 7 Having perused the impugned order and having heard the learned counsel for the Petitioner, in my view, no case for interdiction in the writ jurisdiction of this Court under Article 227 of the Constitution of India is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]