1 WP 5672.2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5672 OF 2010 Mirza Turab Patel Age : 50 years, Occ : Agriculture, R/o Sindala (Jahagir), Tq.Ausa, Dist.Latur. ..PETITIONER VERSUS- 1. Jamir Miya Ibrahim Patel Age : 42 years, Occ : Agriculture & Meson, R/o Sindala (Jahagir), Tq.Ausa, Dist.Latur At present Near Churmoora Bhatti, Anand Nagar, Kazi Mohalla, Dist.Latur. 2. Ibrahim Imam Patel Age : 89 years, Occ : Agriculture, R/o Sindala (Jahagir), Tq.Ausa, Dist.Latur. 3. Rahumombi Jamir Miya Patel Age : 35 years, Occ : Household, R/o Sindala (Jahagir), Tq.Ausa, Dist.Latur At present Near Churmoora Bhatti, Anand Nagar, Kazi Mohalla, Dist.Latur. ..RESPONDENTS ......... Mr. L.B. Syed, advocate for petitioner. Smt. Fatima Kazi, Advocate holding for Mr.S.S. Kazi, advocate for respondent nos.1 to 3. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 29th July, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2 WP 5672.2010 2. The petitioner is the decree holder who had obtained decree in Special Civil Suit No.68/2004 for recovery of Rs.60,000/- alongwith interest. This decree was rendered on 27th August, 2009. The petitioner had put the decree for execution by filing Regular Darkast Application. The execution of the decree was sought by attachment and sale of the agricultural land owned by the respondent no.1 i.e. the judgment debtor. The land bearing survey no.16/1/1, admeasuring 2 Acres 2 Gunthas came to be attached. The respondent no.3 objected the execution of decree. The petitioner thereafter filed application (Exh.10) in R.D. No. 396/2009 seeking impleadment of respondent no.3 and further prohibitory order restraining the respondent nos.1 to 3 from alienating or otherwise transferring the said land which was sought to be sold in auction in execution of the decree. That application came to be dismissed vide impugned order dated 31st March, 2010. Hence, the Petition. 3. Heard learned counsel for the parties. 4. At the outset, it is important to notice that the petitioner is holder of the decree and the respondent no.1 is liable to pay decretal amount to him. There is no dispute about the fact that the land in question was owned by the respondent no.1. The 3 WP 5672.2010 respondent no.3 claimed that she was given the said land by virtue of assignment dated 23.10.2009 in lieu of Meher. There is no dispute about the fact that the respondent nos.1 and 3 are living together for more than 20 years prior to the so called transaction of transfer in lieu of the Meher, as husband and wife. There is absolutely nothing on record to show that Meher was agreed at the time of marriage between them. The basic question is as to whether such Meher which was subsequently given vide the transfer in favour of the respondent no.3 could be taken cognizance of by the Executing Court. The respondent no.3 claims to be subsequent transferee during pendency of the execution of the decree. The petitioner has first claim in priority, over and above any other claim unless there is explicit evidence to indicate that the land was not owned by the respondent no.1. The respondent no.1 and respondent no.3 may manipulate any record of subsequent transfer. That can not be considered by the Executing Court without there being substratum to say that it has any semblance of genuine transaction. In any case, even if the land is transferred in lieu of Meher then also it required registration of the document at the relevant time when the transfer is effected. The respondents have not placed on record the copy of siyanama which could have been relied upon. There was nothing on record to show that Meher was deferred and the said land was itself the agreed Meher. 4 WP 5672.2010 If the property is transferred as Meher then the transaction may not require registration whereas, if it is transfered in lieu of Meher the same would require registration. On the face of it, the respondent no.3's claim is required to be determined having regard to the attending circumstances and particularly delayed execution of the document relied upon by her. In other words, she is necessary party to the proceedings. Dismissal of the Petition filed by the decree holder is not only erroneous, but it is patently illegal and perverse. 5. In the result, the Petition is allowed. The impugned order is set aside. The Application filed by the petitioner for impleadment of respondent no.3 vide Exhibit-10 be deemed as allowed and the Executing Court shall expeditiously determine the claims of the parties and proceed with the execution of decree on merits thereof. Rule is made absolute accordingly. No costs. The parties to maintain status-quo and shall appear before the Executing Court on 24th August, 2010. (V.R.KINGAONKAR) JUDGE gas/wp5672.10