1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.990 OF 2010 JAYAWANT DATTATRAYA MURTADAK PETITIONER V E R S U S NAMDEO DADA KOLHE AND ANR RESPONDENT. Mr. K.D. Bade Patil, advocate for the petitioner. CORAM : S. B. DESHMUKH, J. DATE : 9th FEBRUARY, 2010. PER COURT :- 1. Heard counsel for the petitioner. Petitioner is the judgment debtor in Regular Darkhast No.48/2008 pending before the learned Civil Judge (J.D.) Sangamner, District Ahmednagar (herein after referred to as 'executing court'). The petitioner has filed an application under section 47 of the Code of Civil Procedure in R.D.No.48/2008, filed by the respondents/decree holder. Copy of the application filed by the present petitioner annexure 'F' is on record. Few of the facts or proceeding, I am listing herein below :- a. Respondents/decree holder filed RCS No.456/1986 in the court of learned Civil Judge J.D. Sangamner for specific performance of Contract. Copy of the judgment delivered by the learned 2nd Jt. Civil Judge J.D. Sangamner, on 17.03.1993 is on record. It appears from the operative part of the judgment that suit for specific performance of contract was dismissed with costs by the trial court. The petitioner/defendant was directed to refund amount of Rs.15,000/- in lump 2 sum with and interest @ 6% p.a.on it to the plaintiff within one month from the date of the judgment. Rate of interest 6% was directed to be calculated from the date of the suit till full realization of the decretal amount. b) Judgment and decree passed by the trial court dated 17.03.1993 in RCS No.465/1986 was challenged by the present petitioner/defendant by filing RCA No.309/2000 (old RCA No.234/91). This appeal after hearing the parties, was decided by the First Appellate Court. Copy of the judgment delivered by first appellate court in this appeal is on record, annexure B. From the operative part of this judgment of the first appellate court, it is manifest that judgment and decree passed by the trial court was reversed. First Appellate Court directed the defendant to execute sale deed in favour of the plaintiffs in respect of suit property i.e. land gat No. 97, more particularly described in paragraph No.1 of the plaint after accepting amount of Rs.10,000/- which is deposited in the court and obtained the permission from the competent authority for execution of the sale deed. Judgment further says that if defendants failed to execute sale deed in favour of the plaintiffs, then commissioner be appointed and through Commissioner, sale deed of the suit land be executed in favour of the plaintiffs. Costs were directed to be paid by the respondent in appeal to the appellants. This was the judgment and decree passed by the first appellate court on July 4, 2002. c) Aggrieved petitioner/defendant by the judgment and decree passed by the first appellate court, in appeal No.309/2000 dated 04.07.2002, challenged the same by filing Second Appeal No.292/2002 in the High Court along with Civil Application No. 5225/2002. Annexure ‘C’ is copy of the order passed by the 3 learned Single Judge of this Court dated July 26, 2007. Learned Single Judge of this Court dismissed the second appeal with no order as to costs, disposed of civil application directing the remittance of the record and proceeding to the trial court. d) The successful plaintiffs filed R.D. No.48/2008 in executing court seeking execution of decree. Annexure ‘D’ is the copy of said Darkhast on record. e) From the order passed by executing court on 20.11.2009 it is clear that review application before High Court bearing No.11826/2009 in S.A. No. 292/2002, was pending for this reason progress of the case i.e. execution petition was stayed till decision of High court. After this order, I have also noticed another order passed by the executing court on 04.01.2010 below exh.1 on R.D.48/2008. This order clarifies that review application seeking review of the order passed in S.A.No.292/2002 by the High court was dismissed, rule was discharged. Stay granted on 17.11.2009 was also vacated by the High Court on 01.12.2009 after dismissal of the review petition filed by the present petitioner J.D. Executing Court, therefore, passed an order that case to proceed further, as per law meaning thereby execution petition to proceed further. I have also considered order passed by the executing court on 22.01.2010 below Exh.1 (page 52). The executing court refers the earlier order below Exh.31, 24, 35, 36 and 51 and further ordered issuance of writ to Commissioner to execute sale deed of the suit property as per decree of RCA No.309/2000 on payment of process fees. f) Annexure ‘E’ is copy of draft sale deed, tobe registered with the authority competent i.e. Sub Registrar, by the Commissioner, in view of the decree 4 passed by the First Appellate Court. The learned counsel for the petitioner has pointed out paragraph No.4 of the draft sale deed (page 55) wherein, it has been mentioned that sale deed is executed by the Court Commissioner and possession of the property is also delivered. Thereafter, further I have noticed the order passed by the learned trial court page 56 dated 22.01.2010. By this order, trial court/executing court heard the parties more specifically grievance raised by the present petitioner/J.D that draft sale deed should not be accepted. It is not in dispute that copy of the sale deed which is on record, annexure ‘E’ is not the sale deed, but is a draft sale deed produced before the court. Executing court heard present petitioner / J.D. on this draft sale deed, objection was raised by the present petitioner that draft sale deed should not be accepted. Learned judge, after referring his earlier order below Exh. 24, hold that as mentioned in the order passed below Exh.24, no such petition as contended by the present petitioner is pending before Honourable High Court or Apex Court. Executing court therefore did not find substance in the objection raised by the J.D. Exh.32. Draft sale deed filed by D.H. Exh.31 was therefore directed to be accepted by the court by this order passed on 22.01.2010. g) After order passed by executing court, accepting draft sale deed dated 22.01.2010 in disputably, J.D/present petitioner filed an application purporting to be an application under section 47 of the Code of Civil Procedure annexure ‘F’ to this petition. The decree holder was called upon to file his reply. His reply appears on the same application filed by the present petitioner/ J.D. It is a hand written reply, probably filed by the Advocate appearing for decree holder (page 61). In his reply, “decree holder has contended that application is devoid of 5 merit, Honourable court cannot go behind the decree. This court cannot sit in appeal to decide validity of the decree as it is a finding by the High Court and Supreme Court. Application be dismissed.” h) Trial Court after hearing the parties passed an order on this application under section 47 in trial court annexure ‘F’. In this, Court passed an order rejecting said application. This application was at Exh. 51 in the trial court. This order is passed on 22.01.2010. 2. Learned counsel for the petitioner took me to the paragraph No. 18-19 of the Judgment of the Trial Court in RCS No.456/1986. From these two paragraphs, he has pointed out admission of the plaintiffs that separate possession receipt executed between him and defendant but same is not produced on record. The court drew adverse inference against the plaintiffs. In paragraph No.19 categorically, Trial Court has observed that “Obviously plaintiff was never put in possession of the suit property and it is the defendant who continued to be in possession of it.” Counsel for the petitioner emphasized these two paragraphs in support of his proposition that Judgment debtor/present petitioner was in actual physical possession of the property and therefore, there is no question of handing the possession, there is no decree passed by the competent civil court for delivery of possession by the present petitioner / J.D. Despite this fact, counsel for the petitioner strongly contended that copy of the draft sale deed on record annexure ‘E’ is illegal, makes mention that possession of the property is given by the court commissioner. He submitted that this draft sale deed is now accepted by the learned Judge by the order dated 22.01.2010 below application under section 47 6 annexure ‘F’ . He has also invited my attention to all grounds raised in application under section 47. Copy of which is on record. 3. Principal two submissions are addressed to this Court. One that, draft sale deed makes mention of delivery of possession and has been accepted by the trial court illegally, despite the fact that there is no decree passed. Another submission of the counsel for the petitioner is pertaining to recession of contract. 4. The trial court in its order below Exh. 51 has observed that Judgment debtor i.e. present petitioner has not mentioned the date on which he has deposited amount of earnest money and interest in the court or date on which decree holder has withdrawn the said from the court. Trial court therefore, on this point arrived at conclusion that there is no substance in this submission that he has deposited amount of earnest money with interest. On the point of alleged permission to be obtained, executing court recorded a finding that appellate Court had not directed the plaintiff/decree holder to obtain permission of the competent authority to get execution of the sale deed. It is pertinent to note that Appellate court, on the contrary, has observed that on the other hand, it had directed the defendant/ Judgment Debtor to obtain permission of competent authority by accepting the balance amount of consideration of Rs.10,000/- which is already deposited by the plaintiff. Executing court therefore hold that there is no substance in this submission also of the J.D. / petitioner. Mentioning of delivery of possession in the draft sale deed also has been considered by the executing court. It is a categorical observation of the executing court in the order impugned that decree holder has also not claimed possession in this execution or there is no 7 direction from appellate court to deliver possession of the property to the Decree Holder. The executing court arrived at a conclusion that application under section 47 of C.P.C. filed by the petitioner is not maintainable in view of the fact that there was no response to the notice under Order 21 Rule 22 of Code of Civil Procedure, served to the J.D./present petitioner. Executing court found it a belated attempt however dealt with the application on merits and rejected the same. 5. The procedural code i.e. Code of Civil Procedure contains around 52 Orders in the First Schedule. Biggest is the Order XXI comprising around 106 rules. To obtain a decree from civil court successfully is itself is a task for the plaintiff- litigant. If plaintiff litigant succeeds in his attempt, it is another aspect of the matter for him, if he is drived up to Honourable Supreme Court to substantiate his contention at all levels i.e. at the level of First Appellate Court, Second Appellate Court and ultimately if SLP is filed before Honourable Supreme Court, he has no option. The plaintiff-litigant even if succeeds to support the decree passed by the Civil Court at the first instance, uptil the Honourable Supreme Court, his ordeal is not over. The plaintiff thereafter is required to approach to civil court to seek execution of the decree by filing Execution petition. This point of time comes in the life of plaintiff-litigant after many years, figure may differ from case to case. In the case on hand, the respondent decree holder has undergone this ordeal. 6. Order XXI Rule 34 is relevant in the case on hand. In view of undisputed fact that there is a decree passed by the First Appellate Court for specific performance of contract. Order 21 Rule 34 comprises around 6 sub rules. In the case on hand, we are at the stage of Order XXI Rule 34 Sub rule 4. 8 Indisputably and as I have recorded in foregoing paragraphs of this order draft sale deed is placed on record, copy thereof is served to the petitioner/judgment debtor, his objection is recorded, rejected by the executing court and draft sale deed is accepted. Sale deed conveys title of the subject matter i.e. movable/immovable property from seller to purchaser. In my view, there is no perversity in the order passed by the executing court. 7. Executing court in its order has observed that the application under section 47 is filed at belated stage. Record shows that at every level Judgment Debtor tried to file proceeding to delay the execution of the decree passed by the First Appellate Court. In my view, no case for invocation of extra ordinary jurisdiction under Article 226, 227 is established. 8. Writ petition stands dismissed in limine. No order as to costs. Executing court shall proceed with the execution in accordance with the provisions of law. ( S. B. DESHMUKH ) JUDGE. ..... aaa/990.10