1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.925 OF 2010 ALONGWITH REVIEW PETITION (ST) NO.2852 OF 2010 IN WRIT PETITION NO.4734 OF 2009 Hanumanta Timma Pujari (since deceased) through legal representatives & Ors. .. Petitioners versus Narhari Balku Kawade (since deceased) through legal representatives & Ors. .. Respondents Mr.A.M.Vanarse for the petitioners. Mr.Mandar Limaye & Mr.Mahendra Agavekar for respondent Nos.3 to 5 and 9. CORAM : A.S.OKA, J. DATE : 23rd March 2010. JUDGMENT: . The writ petition and review petition arise out of the same proceedings and therefore same are taken up for hearing. The litigation subject matter of these petitions has chequered history. The petitioners are 21 judgment debtors in a suit for possession filed by the respondents. A decree for possession has been passed against the petitioners in the year 1984. The execution application was filed by the respondents. An application was made at Exhibit 37 in the said execution application by the respondents decree- holders . A prayer was made in the said application for directing demolition of the structures erected on the suit property with the assistance of the 2 police. The said application was allowed by order dated 17th October 2008. One of the judgment debtors, namely, judgment debtor No.16 (Petitioner no. 16 herein) made an application at Exhibit 50 for reviewing and setting aside the order dated 17th October 2008 passed by the executing Court below application at Exhibit 37. A prayer was made by the judgment debtor No.16 for grant of opportunity to file reply to the application at Exhibit 37. By order dated 2nd January 2009, the said application was rejected. The said judgment debtor No.16-petitioner no.16 preferred Writ Petition No.1148 of 2009 in this Court for challenging order dated 17th October 2008 passed below application at Exhibit 37. By judgment and order dated 4th March 2009 the said writ petition was disposed of. This Court noted that objections have been raised to the executability of the decree by the petitioner in the said petition. Therefore, this Court directed that said objections will have to be decided first before effect is given to the order dated 17th October 2008. Therefore, this Court directed the executing Court to decide the objections raised by the petitioner expeditiously. It was directed that the order dated 17th October 2008 passed below Exhibit 37 shall remain in abeyance and the said order will be subject to final outcome of the decision on objections. Thereafter, the present petitioners moved an application at Exhibit 66. In the said application a prayer was made for review of order dated 17th October 2008 passed below Exhibit 37. By judgment and order dated 25th March 2009, the said application was disposed of. In paragraphs 5 and 7 of the said order the learned trial Judge observed thus: 3 “5] On perusal of application Exhibit 66 it appears that the said application has been preferred on behalf of the judgment debtors. It ought to have been filed by the objectors. As application is preferred by J.Ds they to adduce evidence that objector have their houses on suit property alongwith 21 J.Ds. The said 21 J.Ds have no right to prefer any objection for themselves as decree is against them and sufficient opportunity has been granted to them to file their reply if any. Hence, instant application has to be treated as application preferred on behalf of the objectors. 6] .... 7] As the objectors have been granted an opportunity to adduce evidence as above, if the objectors succeed in adducing necessary evidence the order passed below exh.37 dtd.17/10/2008 shall be subject to necessary modification. The order passed below exh.37 against the 21 decree holders as mentioned in decree remains as it is.” In paragraph 8 the executing Court proceeded to pass following order: “8] The objectors are directed to furnish within 1 week a following information so that their objection can be properly decided: A] Affidavits of each objector giving detail description of the house occupied by him, the house number, when it was built, the type of construction, the number of rooms, their measurement, the amenities in the said house, the names of the people residing in the said house, the boundaries of the house, the date or the year when he/she acquired entries for title on the said house and other necessary information. B] Photographs of the house C] Document of right/title/interest in the house D] Electricity bills E] Water bills F] Municipal Tax receipts G] Ration Card Any other document showing the existence of any house over suit property and the possession of objector over it. Application stands allowed accordingly.” 4 2. Thereafter, further order dated 29th April 2009 was passed by the executing Court directing that the execution will proceed. Writ Petition No. 4734 of 2009 was filed by the petitioners specifically for challenging the order dated 29th April 20009 passed by the executing Court by which it was directed that the execution application will proceed. By a detailed judgment and order dated 15th October 2009, the said writ petition was rejected by this Court. This Court observed that the petitioners have not challenged the order dated 17th October 2008 passed below Exhibit 37. This Court also observed that the application made by the petitioners for review of the said order at Exhibit 66 was rejected by the trial Court but even the said order has not been challenged. Therefore, this Court observed that no fault could be found with the order of the executing Court by which execution was ordered to be proceeded with. The review is sought of the said order of this Court by filing the present review petition. The learned counsel appearing for the petitioners in support of the review petition invited my attention to the operative part of the order dated 25th March 2009 passed below application at Exhibit 66 which records that “application stands allowed accordingly.” He submitted that the said order has the effect of the allowing application at Exhibit 66 and therefore the order passed on 17th October 2008 below application at Exhibit 37 stands set aside. He submitted that as order below Exhibit 37 was set side, the executing Court ought to have given opportunity to the petitioners to contest the application at Exhibit 37 and without deciding the said application. the order below Exhibit 74 of proceeding with the execution 5 could not have been passed. 3. Writ Petition No.925 of 2010 has been preferred by the petitioners for challenging the order dated 17th October 2008 passed below the application at Exhibit 37 and the order dated 25th March 2009 below the application at Exhibit 66. The learned counsel appearing for the petitioners in support of the said petition contended that as the petitioners were under bonafide impression that the prayer for setting aside the order below Exhibit 37 was allowed by order passed below Exhibit 66, in the earlier petition, the petitioners had not challenged the orders passed below Exhibit 37 and Exhibit 66. He submitted that the petitioners have placed on record of the execution application certain documents showing that the property subject matter of the decree has been declared as a slum area by notification dated 12th April 1984 issued under section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971(hereinafter referred to as the said Act). It must be mentioned here that when this writ petition came up on board on the earlier date , a compilation of these documents was tendered by the learned counsel appearing for the petitioners. He pointed out that documents at serial Nos.2 to 6 therein were already on record of the executing Court. He submitted that as the suit property has been declared as a slum area, the objection raised by the petitioners will have to be considered by the trial Court. An objection was raised by the learned counsel appearing for the respondents to production of 6 the said documents by contending that the same were not on the record of the execution application. Therefore, the petitioners were called upon to file an affidavit stating that the said documents were on record of the executing Court. The petitioners were directed to disclose the exhibit numbers of the said documents. Accordingly, an affidavit was filed by petitioner No.16 on 18th March 2010 which does not clearly state that the said documents were on the record of the execution application. There is a further affidavit filed on 22nd March 2010 by the same petitioner stating that the said documents have been filed on record of the execution applications below Exhibit 90 and Exhibit 91. The learned counsel appearing for the respondents has raised a strong objection by submitting that the said documents have been filed on the record of the execution application on 8th March 2010 with a view to circumvent the orders passed by this Court. 4. I have carefully considered the submissions made in support of the review application as well as the writ petition. 5. The decree under execution is of removal of encroachment after demolition of huts or any other structures on the suit land. As pointed out earlier, by order dated 17th October 2008 passed below Exhibit 37 in the execution application, demolition of the huts on the suit property under police assistance was ordered by the executing Court. It must be noted here that Second Appeal (St) No.20911 of 2007 was filed by the petitioners in this 7 Court for challenging the decree under execution and the decree passed by the district court in appeal confirming the decree of the trial court. The said Second appeal was dismissed by judgment and order dated 25th November 2008. A specific reliance was sought to be placed on the notification under section 4 of the said Act. This Court recorded statement of the learned counsel appearing for the respondents that the notification does not pertain to the suit property. This Court recorded the submission of the learned counsel appearing for the petitioners herein that a separate declaratory suit has been filed by the petitioners for praying that the suit property has been declared as a slum area. It is pertinent to note that none of the petitioners except petitioner No.16 took any steps after the order was passed below Exhibit 37. The petitioner No.16 made an application at Exhibit 50 for reviewing and setting aside the order passed below Exhibit 37. The said application was rejected. Only the petitioner No.16 approached this Court by filing Writ Petition No.1148 of 2009. While disposing of the petition , this Court did not set aside the order dated 17th October 2008 passed below application at Exhibit 37. This Court noted the objection raised by the petitioner No.16 in application at Exhibit 50 that there were 50 houses on the suit property and the suit was filed only in respect of 21 houses. The contention of the petitioner No.16 in the said application was that it is possible that persons who are not the parties to the suit will get affected by the blanket order passed below Exhibit 37. The only direction issued by this Court under order dated 4th March 2009 was that the order dated 17th 8 October 2008 shall be kept in abeyance till executing Court decides the objections raised by the petitioner. Thereafter, the other petitioners filed an application at Exhibit 66 praying for reviewing and setting aside order below Exhibit 37. As pointed out earlier, the said application at Exhibit 66 was disposed of by order dated 25th March 2009. The executing Court observed that the present petitioners had no authority to prefer any objection as they are bound by the decree. This Court observed that application at Exhibit 66 ought to have been filed by the objectors and therefore the said application will have to be treated as application filed on behalf of the objectors. The executing Court directed the objectors to file affidavits setting out details of the structures occupied by them. The said Court directed the objectors to file various documents alongwith the affidavit. It was observed that only if objectors succeed in adducing necessary evidence, the order dated 17th October 2008 below Exhibit 37 shall be subject to necessary modification. The executing Court specifically observed that the order passed below Exhibit 37 against the petitioners remains as it is. The effect of the said order is that the application at Exhibit 66 stood rejected as far as the petitioners/judgment debtors are concerned. It is pertinent to note that in the application at Exhibit 66 no contention has been raised that the suit property has been declared as a slum area. The only contention in the said application was in paragraph 3 which reads thus: “3. The J.Ds also submit that at present, in the suit property, there are over 50 houses. However, the suit was filed against only 21 houses. Under these circumstances, it is possible that the people 9 were not party to the suit or execution proceedings will get affected by these blanket order of the Court which was passed without giving any opportunities to the J.Ds to give any reply.” Thus, the only objection of the petitioners was that the suit related to 21 houses and as there were 50 houses, persons who are not parties to the suit may be affected. That is why while passing order below Exhibit 66 executing Court held that so far as the petitioners/judgment debtor are concerned, they have no locus and only the objections of the third parties will be considered provided they file detailed affidavits disclosing various particulars in respect of the structures in their possession. It is pertinent to note that in the Writ Petition No.4737 of 2009 filed on 7th May 2009 , there was no challenge by the petitioners to the orders passed on 17th October 2008 below application at Exhibit 37 and order dated 25th March 2009 passed below application at Exhibit 66. The said petition was preferred for challenging the subsequent order dated 29 April 2009 passed below application at Exhibit 74 by which the executing Court directed that the execution application will proceed further. It is also pertinent to note that in the grounds set out in the said writ petition, not even a contention has been raised that the suit property has been declared as a slum area. By a detailed judgment and order dated 15th October 2009 this Court rejected the said writ petition by observing that the order below Exhibit 74 which was challenged in the said writ petition was merely a consequential order passed below Exhibit 37. This Court observed that the petitioners had neither challenged the order dated 17th October 2008 10 passed below application at Exhibit 37 nor the subsequent order dated 25 March 2009 below the application at Exhibit 66. It is obvious that there is no error apparent on face of the record in so far as the said order passed on the earlier writ petition is concerned and therefore, there is no merit in the review petition. 6. Now turning to the Writ Petition No.925 of 2000, the challenge in this writ petition is to the order dated 17th October 2008 passed below Exhibit 37 and the order dated 25th March 2009 passed below Exhibit 66. By filing the earlier petition, the petitioners challenged the subsequent order dated 29th April 2009. However, these two orders were not challenged in the earlier petition. Therefore, on the face of it the, challenge to the said orders cannot be considered in the fresh writ petition. In this writ petition the contention raised by the petitioners is that the suit property has been declared as a slum area on 12th April 1984 by a notification issued under the said Act.. On 5th March 2010 a compilation containing said notification and other five documents was tendered on record in this Court. When a query was made as to whether the said documents were on the record of the execution application, on instructions, the learned counsel appearing for the petitioners stated that the documents were on the record of the execution application and necessary affidavit will be filed accordingly. On 18th Mach 2010 petitioner No.16 filed an affidavit. Paragraph 2 of the said affidavit reads thus: “2. I have placed on record all the documents in the lower Court 11 except the letter of city survey officer letter. The exhibit numbers are yet to be received since the application is filed in record of Room of District Court is annexed here with marked Annexure 1. I will file affidavit of exhibit numbers afterwards, since inspection has not been received so far. City survey officer letter is on record of execution exhibits 90, 92.” 7. Thus, a categorical statement was made by the petitioner No.16 that the said documents tendered across the bar were on record of the lower Court (executing Court) except the letter of the said Survey Officer at serial No.6. It must be noted here that the said affidavit was tendered in this Court on 11th March 2010. The last sentence in paragraph 2 has been added by hand stating that City Survey Officers letter is on record of execution application at Exhibit 90 and Exhibit 91. Further affidavit has been filed on 21st March 2010. Paragraphs 2 and 3 of the affidavit read thus: “2. I further state that I answer the query of this Hon’ble Court that, “Whether the documents placed on record of the writ petition by additional compilation are on the record of executing Court in the execution proceedings?” 3. I state that the answer of the above query upon reconfirmation from advocate appearing in execution that, “All the documents placed on record of the writ petition by additional compilation are already filed on the record of the executing Court in the execution proceedings below exhibit 90 and 91, except the legal provisions of the Slum Act at No.1.” 8. The query of the Court referred to in paragraph 2 of the said affidavit was made on 5th March 2010. Now it is not disputed that the documents at serial Nos.2 to 6 in the compilation tendered in this Court on 5th March 2010 were filed by the petitioners before the executing Court on 8th March 2010. 12 The learned counsel appearing for the petitioners has confirmed this fact on instructions of the petitioner No.16. 9. The main challenge in this Writ Petition No.925 of 2010 is on the ground that the suit property has been declared as a slum area. A solemn statement was made on 5th March 2010 on instructions of the petitioners that the documents at serial Nos.2 to 6 in the compilation were on the record of the execution application. Now it transpires that the said documents were not on the record of the execution application and the same were subsequently filed on 8th March 2010. Thus, the petitioners came out with a totally dishonest stand that the said documents including the alleged notification under section 4 of the said Act of 1971 were already placed on the record of the execution application. The said documents were admittedly filed on 8th March 2010 after this writ petition was adjourned to enable petitioners to file an affidavit stating that the said documents were already on record of the execution application. 10. Apart from the fact that the petitioners could have challenged the orders below Exhibits 37 and 66 impugned in this petition while filing earlier petition, an attempt has been made by the petitioners to rely upon documents which were not placed on record of the executing Court till this petition was filed. 13 11. Moreover, neither in the application at Exhibit 50 nor in the application at Exhibit 66 the petitioners have come with a case that the suit property has been declared as a slum area. The same contention was raised by the petitioners in Second Appeal (St) No.20911 of 2007 which was not accepted by this Court. Thus, this is nothing but an attempt made by the petitioners to prolong the execution of the decree passed in the year 1984. Considering the conduct of the petitioners in Writ Petition No.925 of 2010 this is a fit case where order of payment of compensatory costs under section 35A of the Code of Civil Procedure, 1908 should be passed against the petitioners. The amount of compensatory costs is quantified at Rs.25,000/-. 12. Hence, I pass the following order: : O R D E R : (a) Writ Petition No.925 of 2010 is hereby rejected. (b) The petitioners shall deposit compensatory costs of Rs.25,000/- in this Court within a period of six weeks from today. Out of the said amount, a sum of Rs.15,000/- shall be paid to the respondents and the balance amount should be paid over to the Maharashtra State Legal Services Authority. (c) Review petition is rejected with no orders as to costs. . The learned counsel appearing for the petitioners prays for 14 continuation of interim relief granted in the writ petition. The said prayer is opposed by the learned counsel appearing for the respondents. Ad-interim relief will continue to operate for a period of four weeks from today. (A.S.OKA,J)