1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER NO.118 OF 2010 WITH CIVIL APPLICATION NO.12562 OF 2010 Mahavir s/o Hukumchand Patni, aged 55 years, occu. Business, r/o CTS No.725, Ram Mandir Chowk, Main Road, Shrirampur, Tq. Shrirampur, Dist. Ahmednagar. .. APPELLANT. VERSUS 1 Chandulal s/o Deepchand Kale, and 16 others. .. RESPONDENTS. ... Shri R.N. Dhorde, Advocate with Shri V.R. Dhorde, Advocate for Appellant. Shri S.D. Kulkarni, Advocate for R.No.1. ... CORAM : S.S. SHINDE,J. 1st September, 2010. PER COURT: 1. This appeal from order has been filed challenging the order dated 8th July, 2010 passed by the C.J.S.D., Shrirampur on application below Exh.163 in Special Darkhast No.10/2005. 2 2. The learned Counsel appearing for the appellant submitted that the appellant herein is carrying on his business of cycle mart in the premises under the name and style as “Mahavir Cycle Services”. The electricity connection has been taken in the name of present appellant since 25.10.1973. The registration of the shop under the Bombay Shops and Establishment Act, 1948 is also in the name of the appellant. According to the learned Counsel for the appellant, the respondents No.1 to 10 had filed R.C.S. No.179 of 1982 before the C.J.S.D., Ahmednagar for possession of the suit property and recovery of an amount of Rs.1,65,000/- along with interest. The said suit came to be decreed on 25th January, 1989. The said decree is confirmed up to the Supreme Court. However, the present appellant was not party to those proceedings. It is further submitted that the appellant filed an application below Exh.163 in Special Darkhast No.10 of 2005 contending that the appellant was put in possession of some part of the suit property on 25.10.1973 and the appellant is carrying on the business of Cycle Mart in the said premises under 3 the name and style as “Mahavir Cycle Services”. The electricity connection is in the name of the appellant since 1973 and the license of the shop is also in the name of the appellant. The learned Counsel further invited my attention to the contents of the application which was filed at Exh.163 before the C.J.S.D., Shrirampur in Special Darkhast No.10/2005. The learned Counsel further submitted that the learned Judge has not framed any specific issue as to whether the appellant is in possession or not. The learned Counsel further invited my attention to the grounds taken in the appeal memo and also in the civil application No.12562/2010 and submitted that the electricity connection shows that the appellant is in possession of the shop since 1973 and, therefore, the application (Exh.163) of the appellant should have been allowed by the trial Court. The learned Counsel for the appellant relied on the decision in the case of Brahmdeo Choudhary vs. Rishikesh Prasad Jaiswal and another [1997(1) Mh.L.J. 817] and submitted that the remedy available to decree-holder against obstructionist is only under Order 21, Rule 97 of 4 the Code of Civil Procedure and the executing Court cannot tell obstructionist to first lose possession and that his remedy is to seek restoration of possession under Order 21, Rule 99 of the Code. The learned Counsel further relied on the decision of the Apex Court in the case of Shreenath and another v. Rajesh and others [AIR 1998 SC 1827] and in particular, to Head Note (B) of the said judgment. The sum and substance of the arguments advanced by the learned Counsel for the appellant is that the appellant is in possession of the premises as set out in the application before the Court below since 1973 and he was not party to any proceeding out of which decree holders are claiming their possession and, therefore, this matter requires consideration. 3. On the other hand, the learned Counsel for the respondents No.1 to 10 i.e. decree-holders invited my attention to the affidavit-in-reply filed in Civil Application No.12562 of 2010 and submitted that the decree-holders have succeeded 5 up to the Apex Court. He invited my attention to the entire affidavit-in-reply and submitted that repeated attempts have been made on behalf of the judgment-debtors to deprive the decree holders from getting possession of the suit premises. The learned Counsel further submitted that the father of the appellant is judgment debtor and at no point of time, the appellant was in separate possession of the suit premises as stated by him in his application before the trial Court. He further submitted that even in the municipal record the name of the appellant is not mentioned as a person in possession of House No.725. The learned Counsel also invited my attention to the fact that the appellant had filed Misc. Civil Appeal No.15/2010 before the District Judge, Shrirampur. The application below Exh.7 filed in the said appeal came to be dismissed with costs on 7th August, 2010 and the appellant was directed to pay compensatory costs of Rs.5,000/- to the respondents (decree-holders). It is further submitted that in clause (3) of the operative order of the District Judge dated 7th August, 2010, it is specifically mentioned that appeal be 6 returned to the appellant for presenting it before proper forum. However, the appellant has not filed the same before this Court. The learned Counsel also invited my attention to the fact that the present appeal is filed by Mahavir s/o Hukumchand Patni and the application below Exh.163 in Special Darkhast No.10/2005 was filed by Mahavir Cycle Service. It is further submitted that in the application at Exh.163 the appellant has not mentioned about the specific area in his possession, neither any provision was mentioned under which the said application was filed nor any document was filed by the appellant to show his possession. Therefore, relying on the averments in the affidavit-in-reply and reasons recorded by the learned Judge in the impugned order, the learned Counsel for the respondents No.1 to 10 prayed for dismissal of the appeal from order as also the application for stay. 4. I have heard the learned Counsel appearing for the appellant and the respondents No.1 to 10 at considerable length. While rejecting the 7 application filed by the appellants at Exh.163 in Special Darkhast No.10/2005, the C.J.S.D., Shrirampur, in paragraph 10 of the order observed as under: “10. .............. .... ......... .......... (a) The objector has not specifically averred the nature of his possession, whether he is a licensee or a tenant. (b) There is no material to show that he was inducted in, either of these capacities by the ancestor of the Decree Holders. (c) This version is apparently unbelievable looking to the fact that, parties have been litigating in respect of the suit properties since last more than 25 years. (d) The objector is son of Judgment debtor No.3 and it has to be accepted that the objector has notice of the entire litigation. The objector in the past did not raise any objection nor appeared in the suit. (e) He is not a stranger to the litigation, in true sense. (f) Neither the Judgment debtor No.3 nor any 8 Judgment debtors ever stated during last 25 years that, the particular portion of the suit property was not possessed by them and it was in possession of the son Mahavir (objector) independently. All this, coupled with timing at which this objection is raised, would make the Court to believe that, the Judgment debtors and objector are acting in collusion. (g) No prima facie independent right of the objector to possess the portion of the suit property is made out. No just cause to resist the execution proceeding, for the objector is made out. It would be un-just or rather it would be abuse of the process to start a full fledged inquiry in to the objection.” Ultimately, with the aforesaid conclusions, the C.J.S.D., Shrirampur rejected the application below Exh.163 in Spl. Darkhast No.10/2005 filed by the appellant. 5. Perusal of copy of the electricity bill annexed at Exh.B (collectively) to the civil application would show that there is no mention of House No.725 in the said bill. There is only mention of name of the appellant and Main Road 9 III, taluka Shrirampur, District Ahmednagar. The licence issued by the Shop Inspector at page 26 (Exh.B collectively) also does not show that the appellant is running a cycle mart in the House No.725. I have carefully perused both the documents which are placed on record. 6. A careful perusal of the contents of the application (Exh.163) which was filed by the appellant herein before the trial Court would show that there is no mention of any specific area which is in independent possession of the appellant since 1973. In the said application, there is no mention of any provision under which the said application was filed. It is mentioned in the said application that the decree holders or judgment debtors have no relation with the premises in question. The statement is made that the said premises are given to the appellant by one Mr. Premraj Punamchand Kale in 1973 for running cycle shop. However, the appellant has not placed anything on record before the trial Court showing his separate possession of house no.725 except electricity bill and certificate of 10 shop registration issued by the Shop Inspector. Both these documents do not bear house No.725. It is not in dispute that the appellant is son of respondent No.3 Judgment-debtor. 7. On careful scrutiny of the documents on record and the contentions of the appellant, it clearly emerges that nothing convincing was brought to the notice of the C.J.S.D. to show that the appellant was in separate possession of House No.725 as stated by him in his application. No case was made out by the appellant to show his separate possession. The case in hand stands on different footings for the reason that the decree holders i.e. respondents No.1 to 10 are fighting for their rights for last 25 years and they have succeeded up to the Apex Court. It is also relevant to mention that the undertaking was given by the Judgment-debtors before the Honourable Supreme Court that they would vacate the premises within a stipulated period. In spite of that the respondents No.1 to 10 decree- holders were compelled to file execution petition. 11 8. For all these reasons, I do not find any substance in the appeal from order. The trial Court, after taking into consideration the entire material brought on record and the past history of litigation, had passed conscious order, which needs no interference. 9. Hence, the appeal from order is dismissed. Consequently, nothing survives in the civil application, and the same is disposed of. No order as to costs. [ S.S. SHINDE ] JUDGE. ... PLK/*